LIBRARY 

OF  THE 

UNIVERSITY  OF  CALIFORNIA. 


GIFT    OF 


0 


Class 


^) 


A    STUDY 


OF  TH,. 


PARLIAMENT  OF  PARIS, 


AND  THE  OTHER 


PARLIAMENTS  OF  FRANCE. 


A    STUDY 


OF  THE 


PARLIAMENT  OF  PARIS, 

AND  THE  OTHER 

PARLIAMENTS  OF  FRANCE. 

A  THESIS 

PRESENTED  TO  THE  FACULTY  OF  THE  COLLEGE  OF  LIBERAL  ARTS 
OF  THE  SYRACUSE  UNIVERSITY, 

FOR    THE    ATTAINMENT    OF    THE    DEGREE     OF 
DOCTOR    OF    PHILOSOPHY, 

-  BY  - 

JANE  M.  BANCROFT,  'Rakms 

n 

OF 

THE    NORTHWESTERN     UNIVERSITY,    EVANSTON,    ILL. 


OF  THE 

UNJVERSITY 

OF 

f4\jjp*fa  A.  GUILDS,  PKINTEK,   EVANSTON. 
tSS4. 


X 


.-;  , 

' 


Of  THE 

UNIVERSITY 

OF 

.&U.IF4 


Introductory  Note 


The  subject  of  the  Parliaments  of  France,  so  far  as  I  am  aware,  is 
treated  by  no  one  English  author.  While  frequent  allusions  are  made 
to  the  Parliaments  in  all  histories  of  France,  somewhat  diligent  search 
has  failed  to  find  in  any  English  work  an  adequate  explanation  of  their 
origin,  their  organization,  and  their  political  history.  The  collection  of 
materials  for  even  so  short  a  thesis,  has  therefore  been  attended  with 
considerable  difficulty.  The  translations  of  the  authorities  quoted  in  the 
notes,  are,  in  all  cases,  those  of  the  writer. 

I  desire  to  acknowledge  obligation  for  valuable  assistance  rendered 
in  prosecuting  my  studies,  to  Miss  Florence  Gushing,  of  Boston ;  to  Mr. 
John  Savary,  Assistant  Librarian  of  the  Library  of  Congress;  to  Mr. 
Frederick  Saunders,  Superintendent  of  the  Astor  Library,  and  to  Dr.  W. 
F.  Poole,  of  the  Library  of  Chicago. 

JANE  M.  BANCROFT. 


Woman's  College  of  the 
Northwestern    University,  Evanston,  III. 
June  u,  1884. 


207752 


4 

information  and   advice  concerning   matters   of  state;  a  council 
which  filled  the  function  of  both  a  political  and  feudal  assembly.1 

A  brief  re"sum6  of  the  reasons  for  the  several  theories  will  be 
given. 

I.     If  it  could  be  proved   that  France  had  a  judicial   system 
extending  backward   in   an  unbroken  chain,   so   that    the  Parlia- 
ments could  be   connected  with   the   Champs  de  Mai,   under  the 
Carlovingian    rulers,    and    the     Champs    de    Mars,    under    the 
Merovingian  faineants,  then  the  right  of  the  people  to  a  voice  in 
government    would    receive    historical    corroboration,    and    the 
Parliaments    would    be   its    still    existing    monuments.     In    the 
troubled    state    of    France    preceding    the    Great    Revolution 
industrious   researches  were  made  to  sustain   this  theory,  and   its 
best  presentation  is  found  in  the  famous    Encyclopaedia  edited  by 
Diderot,  and   d'  Alembert.8     The  assemblies  of    the   nation,  to 
which   historians    have  v  applied  the  name    parlemens  ge"neraux 
were  not  of  royal  institution,  but  were^brought  in  by  the  Franks. 
Under  the    first   race    they    were    called   "Mallum,"8  from    the 
Teutonic  mallen  to  talk;  under  the  second  race,  they  war&known 
as  Mallum,    placiturn   generale,    consiliurn,  or  colloquium;   under 
the  third  race,  curia    regis,    judicium   Francorum,  and   subse- 
quently   parlement.       At  first  all    freemen    were    admitted    to 
these  assemblies;  as  the  nation   became  greater,  each  canton  had 
its  own  assembly,  and   only  those   who  held  rank  or   position   in 
the  state  were  admitted.     These  general  assemblies  formed  the 
public  council  of  the  kings.     Furthermore,  the  kings  of  the   first 
and  second  races  had  their  special   council  or  court,  and  toward 


1  Beugnot,  Comte  de.  Documents  in^dits  sur  1'  Hist,  de  France.  Les 
Oliin,  vol.  i,  preface,  p.  29. 

8  Encyclopedic  Method  ique,  Jurisprudence,  tome  vi,  Paris  1786. 

8  Gibert,  Recherch,  histr,  sur  les  Cours  de  Justice,  tome  30,  p.  592. 
Le  mot  Parleinentum  avait  la  meme  signification  que  celui  de  mallum, 
qui  dans  1'ancienne  langue,  voulait  dire,  conference  pour  parler. 


the  close  of  the  second  race,  the  parlemens  gen<§raux  were 
chosen  from  members  of  the  king's  court.  The  reunion  of  the 
public  and  special  council  was  consummated  during  the  first 
three  centuries  of  the  third  race.  The  assembly  of  the  king's 
court  was  never  identical  with  the  old  assemblies  of  the  nation. 
The  latter  were  not  of  royal  creation,  and  those  who  formed  part 
of  it  enjoyed  this  right,  by  virtue  of  being  freemen.  The  king's 
court  of  council  was  of  his  own  creation.  Its  existence  and 
powers  depended  upon  his  will.  Thus,  the  editors  of  the 
Encyclopedia  regard  the  Parliament  as  a  transformed  institution, 
arising  from  the  general  assemblies  of  the  first  race,  the  council 
and  general  assemblies  of  the  second,  and  the  council  of  the 
third  race,  being  in  each  case  the  institution,  which,  with  the 
king,  considered  the  highest  interests  of  the  kingdom  and 
pronounced  ultimate  sentence  of  justice. 

II.     The  claims  of  four  several  kings  of  the  third  race  to 
be  considered  as  the  founder  of  Parliament,  need  to  be  examined. 

a.  JM.  de  La    Roche-Flavin,  a  celebrated  parliamentarian, 
holds  that  the  Parliament  of  Paris  had  its  origin  in  the  Assembly 
ordered  by  Pepin-le-Bref.     Having  resolved  to  go  in  person  to 
Italy  to  aid  the  Pope  against  the  Lombards,  and  having  invited 
the  majority  of  the  princes  and  great  lords  to  accompany  him,  he 
ordered  a  council  or  Parliament,  "composed  of    certain   men  of 
fame  and  experience,"  in  his  name  and  by  his  authority  to  con- 
sider important  matters,  and  to  render  sovereign  justice  in  his 
absence.     De   La  Roche-Flavin  thinks  that  this  body  continued 
an    irregular    existence,     meeting   when    the    king    found     most 
convenient,  and  as  public  matters  demanded. 

b.  Others    accord    this  honor  to  Philippe    Auguste.      His 
father,  Louis-le-Gros,  influenced  by  the  popular  legends  of  Arthur 

1  Bernard  de  La  Roche-Flavin,  Les  Parlements  de  France,  treize  livres. 
Paris,  1G21. 


6 

and  his  knights,1  had  created  twelve  peers,  six  secular,  six 
ecclesiastical.  Philippe  Auguste  formed  from  these  twelve  great 
lords  what  he  called  the  Court  of  Peers,"  and  their  first  case  was 
the  trial  of  John  of  England  for  his  failure  in  duty  to  his  feudal 
suzerain.  When  the  English  king  refused  to  heed  the  summons 
of  herald  and  bailiff  unless  he  could  be  assured  of  a  safe  return, 
the  Court  of  Peers  condemned  him  by  default,  and  all  of  his 
possessions  in  France  were  forfeited  to  the  crown.  This  exercise 
of  authority  greatly  struck  the  minds  of  the  time,  and  increased 
respect  was  accorded  the  shrewd  lawyer-king  who  had  skillfully 
dictated  the  sentence  to  the  court;  but  there  are.no  other  instances 
in  which  this  body  of  peers  in  separate  judicial  existeuce'exercised 
authority.  After  this  one  memorable  act  of  policy  rather  than 
justice,  they  re-entered  the  ordinary  court  of  the  king,  which 
continued  to  pronounce  judgment  as  formerly. 

c.  Under  St.  Louis  the  enlargement  of  the  Royal  Domain 
greatly   extended    the    administration   of  justice,    and  this  king 
introduced  many  valuable  judicial  reforms.       But  the  forms  of 
decrees  do  not  vary  from  those  that  had  been  issued  by  the  three 
preceding    kings,    and    while    St.     Louis    seems    to    have    more 
definitely  provided  for  the    judicial  functions    exercised    by  his 
court,    a    comparison    of  historical    proof  does    not    warrant   the 
conclusion  that  he  is  the  creator  of  this  court.8 

d.  Philippe  le  Bel,    by   an  edict  of    May  23,  1302,4   made 
the    Parliament   sedentary    at   Paris.        From   this  fact,  careless 
historians  have  ascribed  to  him  the  creation  of  the  parliament, 


1  Sir  James  Stephen,  Lect.  on  French  Hist. ;  Lect.  viii,  p.  20G. 

2  Martin,  H.,  Hist,  de  France,  tome  iii,  p.  582. 

8  Martin,  H.,  Hist,  de  France,  tome  iii,  p.  294.  So  good  an  authority  as 
Martin  seems  to  i'avor  this  theory,  "Un  nom  nouveau  designa  cette  institu- 
tion nouvelle,  le  norn  de  parlement,  qui  jusqu'alors  s'etait  appliqu6  vague- 
uient  a  toute  esp£ce  de  conference. 

4  Maurice  Block,  Dictionnaire  de  le  Politique,  1880,  vol.  ii,  p.  503. 


but  this  edict  merely  sanctioned  the  custom  which  the  Parliament 
for  half  a  century  had  had  of  holding  its  sessions  at  Paris, 
and  extended  its  powers  to  some  other  judicial  bodies.1 

III.  The  present  century  has  produced  a  number  of  valu- 
able works  on  the  Parliament  of  Paris  and  the  Parliaments  of 
France,  and  a  more  scientific  method  of  dealing  with  historical 
questions  has  given  better  results.  What  has  been  called  the 
third  theory,  i.  e.,  that  the  Parliament  of  Paris  was  an  outgrowth 
of  the  king's  council  as  devoted  to  judicial  functions,  has  received 
the  sanction  of  the  late  historians,  and  as  Fayard  says  "rests  upon 
numerous  and  irrefragible  documents."8  Before  stating  the 
reasons  for  the  acceptance  of  the  third  theory,  it  will  be  necessary 
to  make  a  digression  and  study  the  judicial  system  in  France 
during  the  third  race  to  the  opening  of  the  13th  century. 

Under  feudalism,  justice  belonged  to  the  lord  in  his  domain. 
The  whole  of  France  was  divided  into  fiefs  cr  chartered 
judicial  municipalities.  In  every  fief  the  lord  exercised 
hereditary  jurisdiction.  According  to  the  language  of 
those  times  the  justice  of  each  Seigneur  was  either  Haute, 
Moyenne  or  Basse,  according  to  the  extent  of  the  damages  and 
the  nature  of  the  penalties  his  court  was  competent  to  award. 
Every  enfranchised  municipality  also  possessed  a  local  tribunal, 
which  administered  justice  Haute,  Moyenne  or  Basse  according 
to  the  terms  of  its  charter,  or  its  hereditary  privileges.  The  m 
Seigneur  himself  presided  in  the  Seignorial  Court,  and  his  vassals 
attended  him  as  judicial  assessors.  They  were  called  peers,  or 
the  equals  of  those  who  were  to  come  before  them  for  judgment, 
for  the  principle  that  no  man  could  be  tried  save  by  his  peers  was 
as  ancient  and  as  fully  recognized  in  France  as  in  England.8 

1  Martin  H.,  Hist,  cle  France,  tome  iv,  p.  446. 

2  Apercu  historique  sur  le  Parlement  cle  Paris,  E.  Fayard,  1876,  vol.  i, 
p.  60. 

3  Picot,  Georges,  Histoire  ties  Stats- Genera ux,  vol.  i,  p.  15 ;  Paris,  1872. 


8 

"The  feudal  court,  the  union  of  vassals  around  the  suzerain,  was 
the  sole  vestige  that  remained  of  the  great  principle  of  delibera- 
tion in  common^  during  the  course  of  the  tenth  century."  The 
king  himself  was  the  Seigneur  of  the  greatest  fief  of  the  realm,  the 
Royal  Domain.  The  feudal  court  of  the  Royal  Domain  was  the 
exact  counterpart  of  the  other  feudal  or  seignorial  courts,  except 
that  it  was  presided  over,  not  by  the  king  in  person,  but  the  Sen- 
eschal, his  representative. 

'  But  there  were  .questions  that  did  not  fall  within  the  range 
of  feudal  law  and  jurisprudence,  therefore,  in  the  provinces 
directly  possessed  by  the  descendants  of  Hugh  Capet, 
Prevots.  judicial  powers  were  intrusted  to  Pr6v6ts,  who  at  the 
same  time  had  care  of  the  administration  of  the  domain.  This 
officer  became  the  judge  in  all  non-feudal  cases  and  was  charged 
with  punishing  slight  misdemeanors.  He  was  obliged  to  hold 
assizes  in  all  the  principal  towns.  The  Prevots  were  chosen 
from  the  simple  bourgeois  and  were  under  the  immediate 
authority  of  the  Seneschal.  As  the  Royal  Domain  enlarged,  the 
courts  of  the  Prevots  and  the  Seneschal  became  inadequate  for 
the  added  duties. 

Philip  Augustus  reverted  to  one  of  the  Carlovingian  institu- 
tions.     Charlemagne  had  sent  officers  called  "  missi  dominici " 
through   every  province  of   the  empire  to  redress  all 
Dominici.     grievances  and  annually  to  report  to  him  the  wants 
and  conditions  of  all  classes  of  his  people.1     So  Philip  Augustus 
appointed  migratory  commissioners  to  perform  circuits  through- 
out his  domain,  to  listen  to  all  complaints  and  to  transmit  them 
to  the  king.     They  were  called  Baillis,  their  offices  soon  became 
permanent,  and  their  circuits  well  denned  judicial  districts  and 
were  called  Bailliages.     The  Baillis  seem    to  have   been   inter- 


1  Martin,  H.,  tome  iv,  p  298.  Capitularies,  810.  "The missi  dominici 
were  sent  by  the  Emperor  with  very  extended  powers,  to  accomplish,  to 
inspect  and  even  lo revise  the  work  of  justice." 


mediate  between  the  Prevots  and  Seneschal,  for  as  soon  as  the 
custom  of  appeals  (unknown  to  feudalism)  was  established,  they 
exercised  the  right  of  judging  appeals  from  the  Prevots.  As 
agents  of  the  royal  power,  to  them  belonged  the  duty  of  causing 
the  nobles  to  execute  the  ordinances  of  the  king. 

The  seigneurs,  "hauts  justiciars"  in  their  own  domains,  were 
jealous  of  these  judicial  encroachments,  and  were  not  long  in 
imitating  the  example  of  the  king,  by  appointing  in  their  fiefs 
Seneschals,  Pre*vots  and  Baillis.  The  resemblance  was  imperfect 
as  the  seignorial  Baillis  could  take  cognisance  of  no  question 
beyond  his  lord's  fief,  while  the  King's  Baillis  could,  at  need, 
indict  the  Seigneur  himself.  Still,  it  produced  this  fortunate 
result,  that  as  one  great  fief  after  another  was  absorbed  into  the 
Royal  Domain,  the  legal  machinery  adjusted  itself  to  the  change 
of  masters  without  a  jar.  Thus  the  absorption  of  fiefs,  by  which 
France  became  one  kingdom,  was  greatly  facilitated.  At  the 
summit  of  this  irregular  hierarchy  was  the  king's  council,  charged 
at  all  times  with  the  political  affairs  of  the  kingdom,  and  now 
recognized  as  the  seat  of  the  final  judicial  authority,  the  point 
whence  all  appeals  ended. 

When    the    Crusaders   returned   from   Constantinople,  they 

brought  with  them  great  reverence  for  Roman  law.     Many  of  the 

traditions  of  the  Code  of  Theodosious  had  lingered  in 

Roman  law 

the  judicial  life  of  France,  especially  in  the  southern 
provinces,1  but  when  the  Pandects  of  Justinian  were  found 
at  Arnalfi  in  1137  a  genuine  revival  of  the  study  of  Roman  law 
took  place  in  the  Universities  of  France  and  Italy.  Bologna 
became  celebrated  for  her  jurisconsults,  and  the  University 
of  Paris  numbered  thousands  of  students.  2  Compilations  of  the 
customs  and  local  laws  of  the  different  provinces  had  previously 

1  Vicornte  de  Bastard  d'  Estang,  Les  Parlemenls  de  France,  vol.  1,  p.43. 
8  The  Pope  understood  the  danger  to  the  Church  and  in  1274  forbade 
the  study  of  Roman  law  at  Paris.     Martin,  H.}  touie  iv,  p.  291. 


10 

been  made,  and  these  were  now  annotated  in  the  spirit  of  the 
Digests  of  Justinian.  A  certain  design  is  apparent  in  the  tone 
of  these  comments,  i.  e.,  the  elevation  of  kingly  power,  and 
the  abasement  of  the  great  nobles.1  St.  Louis  ordered  a  general 
code  to  be  arranged,  and  the  body  of  feudal  law,  illustrated  by 
observations  and  explanations  from  the  Roman  law,  was  put  forth 
in  the  form  known  as  the  Etablissements  of  St.  Louis.8  This 
code  was  intended  for  the  royal  courts  in  the  personal  domain  of 
the  king,  but  it  gradually  penetrated  into  the  seignorial  courts. 
Up  to  this  time  the  seigneur  presiding  over  his  assizes  had 
judged  the  cases  that  came  before  him  with  prompt  and  trenchant 
decision.  When  issues  were  involved  that  were  not  clearly 
defined  by  customary  usage,  recourse  was  had  to  various  ordeals. 
8The  defendant  must  plunge  his  arm  into  boiling  water,  and 
withdraw  it  uninjured;  or  must  walk  over  a  pan  of  coals,  and  yet 
not  be  burned;  or  with  his  arms  tied  be  thrown  into  water,  and 
then  sink,  which  was  not  so  difficult;  in  this  way  the  suitor  was 
referred  to  the  judgment  of  God,  and  the  judge  saved  all  pur- 
plexing  anxiety. 

Were  the  suitor  yet  unsatisfied,  a  singular  custom  of  feudal 

law  gave  him  a  final  resource.     He  could  declare  the   judgment 

judicial      false,  on  condition  of  fighting  a  duel  with  each  one  of 

the  judges  who  had  declared  against  him.4     St.  Louis, 

though  a  deeply  religious,  was  not  a  superstitious  man,  and  he 

clearly  perceived  that  this   judicial  combat  was  but  to  abandon 

the    weak   and   old   to  the  strong  and   vigorous.     In    1260,   he 

issued  an  ordinance  forbidding  the  duel  in  all  the  jurisdictions  of 

1  Les  Coustumes  du  Beauvoisis,  de  Beaumanoir. 

Le  Conseil  a  inon  ami,  par  Fontaine.  "Le  livre  de  Fontaine,  Le 
Conseil  a  mon  ami,  est  le  r^sultat  de  1'  ancienne  jurisprudence  frangaise 
etde  la  loi  romaine,"  Montesquieu,  Esprit  des  Lois,  liv.  xxviii,  chap.  38. 

2  Fayard,  E.  Apergu  historique  sur  le  Parlement  de  Paris,  vol.  i,  p.  61. 
•  Lacombe,  Pet.  Hist,  du  Peuple  Frangais,  p.  41. 

4  Picot,  Hist,  des  Etats-Gen.   Organisations  judiciaries,  vol.  i,  p.  106. 


11 

his  own  domain,  replacing  it,  in  cases  of  appeal  by  a  new  exam- 
ination of  the  matter  before  the  king's  court.1  This  ordinance 
had  been  issued  only  for  his  own  courts,  but,  it  will  be  remem- 
bered, the  Baillis  had  circuits  throughout  entire  France,  and  in 
this  way  were  brought  into  relations  with  the  Seigneurs.  When 
complaints  were  made  of  the  failure  of  any  lord  to  do  his  duty, 
the  Baillis,  instead  of  permitting  the  judicial  combat,  insisted 
that  the  king's  ordinance  of  1260  was  the  rule  of  judgment,  and 
required  the  accused  to  bring  proofs  and  present  arguments. 
This  was  virtually  receiving  appeals.  If  the  Baillis  were 
unable  to  decide  the  matter,  they  brought  it  to  the  king's 
knowledge  in  the  presence  of  his  council.  The  courts 
of  the  seigneurs  soon  became  mere  tribunals  for  unimportant 
cases. 

The  lawyers,  who  had  been  studying  the  Pandects,  were 
finding  other  effective  ways  to  increase  royal  authority.  The 
Roman  law  whole  feudal  law  rested  upon  the  possession  of  land, 

favorable  to 

kingship,  as  the  feudal  maxim  proves  "sans  terre  sans  seig- 
neur;" the  Roman  law  rested  upon  the  relation  of  subject  to 
king,  and  king  to  God;  the  abstract  right  of  the  sovereign  was 
independent  of  all  ownership.8 

In  the  study  of  this  law  and  the  promulgation  of  its  theories, 
kingly  authority  found  justification  for  all  the  power  it  chose  to 
exert.  The  legists  observing  that  every  imperial  command  had 
been  binding  throughout  the  Roman  Empire,  maintained  that 
every  sentence  pronounced  by  the  King's  Courts  should  be 
binding  throughout  France.  This  was  not  only  to  make  the 
laws  of  the  king  universal,  but  to  make  him  a  legislator;  a 
power  which,  in  the  hands  of  St.  Louis,  might  not  be  disastrous 

1  Martin  H.  Hist,  cle  France,  tome  iv,  p.  301. 

8  Fayard,  Apergu   Hist,  sur  le  Parl  cle  Paris,  vol.  i,  p.  87. 
Sir  Henry  Maine,  Early  Hist,  of  Institutions,  chapter  i. 
Freeman,  E.  A.,  Comparative  Politics,  Lect.  iv,  The  King. 


12 

to  a  people,  but  which  in  the  long  results  of  many  reigns  was  to 
conduct  to  the  absolutism  of  Louis  XIV. 

Again,  as  feudal  ties  weakened,  it  became  a  legal  maxim  that 
a  suitor  might  "  declare  his  domicile,"  that  is  he  could  decide  for 
himself  whether  he  would  be  judged  as  a  vassal  of  the  lord  in 
whose  domains  he  lived,  or  as  a  vassal  of  the  great  suzerain,  the 
king.  In  the  latter  case,  he  was  tried  in  the  King's  Courts. 
There  were  many  reasons  why  a  vassal  should  prefer  the  impar- 
tial judgment  of  the  latter  tribunal,  to  the  partisan  decision  of 
the  seigneur  whose  interests  were  at  stake.  It  is  a  cause  of 
wonder  that  the  imperious  barons  acquiesced  so  quietly  in  these 
usurpations,  but  the  code  of  St.  Louis  was  issued  near  the  close 
of  his  reign,  when  the  nobles  were  absorbed  in  preparations  for 
the  great  Crusade.  Then,  although  proud  and  haughty,  these 
men  were  ignorant  and  little  disposed  to  see  the  drift  of  subtle 
questions  of  law,  while  St.  Louis  had  the  art  of  interesting  them 
in  the  acceptance  of  these  reforms,  by  assuring  to  them  all  fines 
for  misdemeanors  committed  on  their  lands;  he  harmon- 
ized their  prejudices  while  reforming  institutions.  Then,  too, 
the  barons  viewed  St.  Louis  with  love,  almost  with  veneration; 
they  regarded  him  as  wise  and  good,  and  they  saw  that  his 
measures  were  of  a  generous  and  national  character.  Although 
of  so  intense  a  religious  nature,  he  vigorously  repelled  papal 
encroachment,  and  laid  the  foundation  of  the  liberties  of  the 
Gallican  Church  by  the  Pragmatic  Sanction.1  Yet  this  very 
measure  was  issued  by  him  as  a  law  resting  on  his  kingly 
authority,  not  on  the  people's  sanction. 

At  his  accession  in  1226,  there  had  already  existed  for  some 

time  a  division  or   section  of  the  Royal    Council    known    as    the 

chambre     Chambre  aux  Plaids,  which  considered  all  appeals  and 

Plaids.  judicial  questions.     Under  St.    Louis,   this    section 


Martin,  H.,  Hist,  de  France,  tome  iv,  p.  310. 


13 

became  sedentary,  and  formed  the  Parliament.  Twenty-four 
members  of  his  royal  council  were  assigned  to  it,  and  to  aid 
them  he  appointed  twenty  legists,  or  men  versed  in  the  study  of 
the  law.  These  humble  clerks  had  previously  found  entrance 
there.1  "So  long  as  disputed  questions  of  law  confined  them- 
selves to  the  rights  in  fishing  and  hunting,  or  the  payment  of 
feudal  dues,  the  active  and  warlike  barons  found  no  trouble  in 
legislation,  but  now  law  was  becoming  a  science.  The  once 
satisfactory  ordeals  were  superseded  by  more  delicate  tests.  The 
exact  truth  must  be  found  as  to  the  language  and  acts  alleged, 
admitted,  or  denied;  the  points  of  law  involved,  determined;  the 
balance  of  conflicting  testimony  weighed.3  This  was  an  un- 
welcome change  to  the  untutored  nobles.  Small  stools 
were  brought  in  and  placed  below  the  stately  benches  of  the 
judges.  Here  sat  the  legists,  base-born  roturiers  in  mean  black 
gowns,  but  trained  at  Bologna  or  Paris  in  the  study  of  the  Roman 
law,  and  curiously  gifted  with  the  art  of  untangling  the  web  of 
legal  difficulties,  and  deducing  the  just  conclusion.  The  lords, 
knights,  and  prelates  at  first  listened  patiently  to  long-drawn 
discussions  about  rules  of  law  they  could  not  comprehend,  and 
Latin  quotations  they  did  not  understand;  but  the  hunting-fray 
and  the  tournament  were  calling  them  away,  and  the  weary 
hours  became  intolerable.  Especially  thankless  did  the  task 
appear,  when  at  the  close  of  every  session  it  was  found  that  the 
humble  clerks  in  the  black  gowns  and  caps,  while  affecting  to 
suggest  the  decisions  of  the  court,  had  really  dictated  the  answers 
of  the  illiterate  barons.  From  this  moment  the  great  vassals  of 

1  Beugnot,  Comte  de.  Essai  sur  r organ  judic.  p.  3.  On  ne  pent 
determiner  avec  precision  a  quelle  epoque  commenga  cette  entree  des 
Itfgistes;  mais  il  est  certain  que  plusieursdes  jugessont  "qualifies  clericos,, 
dans  un  arret  rendu  en  1222. 

*  Desmaze,  C.  Le  Parlement  de  Paris,  avec  une  Notice  sur  les  autres 
Parl'ements  de  France,  Paris,  1859.  Chap,  i,  p.  9. 

8  Martin,  Hist,  de  France,  tome  iv,  p.  810. 


u 

the  crown  began  to  abandon  judicial  functions  to  the  men  of  law, 
but  as  peers  they  always  remained  members  of  Parliament,  and 
appeared  there  when  suits  concerning  their  equals  were  involved, 
or  in  grave  cases  when  their  opinion  was  necessary.  For  all 
ordinary  cases,  the  conseiller  clercs,  as  they  were  called,  were  left 
to  themselves.  They  exchanged  the  low  "marche-pieds"  for  the 
vacant  benches,  and  soon  obtained  titles  recognizing  the  real 
importance  of  their  office.  luThey  constituted  a  formidable 
judicial  aristocracy  opposite  the  feudal  and  sacerdotal  aristocracies, 
and  more  out  of  ambition  than  gratitude  they  confounded  law 
with  the  throne,  and  employed  the  royal  scepter  to  break  the 
swords  of  the  noblemen  and  the  crosier  of  the  prelates."2 
Philippe  le  Bel  thought  of  appropriating  the  organization  of 
Parliament  to  the  reforms  he  purposed  to  accomplish.  By  an 
ordinance  of  May  23, 1302,  he  ordained  "for  the  convenience  of  his 
subjects  and  the  expedition  of  affairs,  there  should  be  held  every 
year  two  sittings  of  the  Parliament  of  Paris."  We  have  now 
before  us  an  outline  of  the  judicial  institutions  extending  to 
the  time  when  historical  truth  becomes  easy  to  verify,  and  the 
question  of  the  origin  of  the  Parliament  of  Paris  is  again 
reached. 

It  cannot  be  doubted  that  the  tradition  of  old  Roman  law 
and  the  force  of  local  customs  lingered  on  through  all  changes,8 
but  it  is  not  true  that  these   customs  and  laws  were 

Reasons   in 

•  theThinf  administered  unchanged.  The  mallums  of  the  first 
race  were  not  a  stable  institution.  They  were  too 
much  affected  by  the  disorders  of  the  times  and  the  continual 
changes  of  boundries.  Under  the  second  race  Charlemagne 
gave  more  complete  forms  to  these  assemblies,  by  combining 

1Fayarcl,  Apergu  Hist,  sur  le  Parlement  de  Paris,  vol.  i. 
*  Guizot  Hist,  of  Civ.  in  France,  vol.  iii,  p.  278. 

8  Guizot,  Hist,  of  Civ.  in  France,  Lecture  xi.    Michelet,  Orgines  du 
Droit  Frangais.     Bastard  d'  Estang,  Les  Parl  de  France,  vol.  i,  p.  44. 


15 

under  one  authority,  territories  previously  ruled  by  many  princes. 
If  these  essemblies  were  the  proto-type  of  any  great  institution 
it  naturally  was  of  the  States-General  as  Boulle'e  well  says:1  "One 
cannot  prevent  himself  from  thinking  that  the  States-General 
was  inspired  by  the  still  recent  recollections  of  the  political 
gatherings  of  Clovis  and  Charlemagne."  When  we  consider 
how  the  feudal  system  renewed  all  France;  how  it  changed  the 
relation  of  man  with  man;  how  it  affected  the  manners  and  ideas 
of  the  people,  no  less  than  its  laws  and  government,  how  can  we 
think  that  the  Parliament  of  Paris  should  alone  remain  standing 
in  the  midst  of  such  an  overthrow?2  Institutions  exist  in  society 
which  belong  to  all  times,  and  without  which  a  people,  however 
little  civilized,  could  not  endure  for  a  day.  Such  are  judicial 
institutions.  The  same  forms  do  not  always  exist;  one  which 
has  lost  its  power  is  replaced  by  another  filled  with  youth  and 
strength,  but  society  can  not  do  without  justice.  It  is  not 
surprising  that  historians  have  considered  the  successors  of 
different  institutions  as  simple  transformations  of  the  same 
institutions.  Voltaire  says:3  "  To  represent  a  nation  one  must 
be  nominated  by  it,  and  removed  at  its  pleasure,"  but  the 
magistrates  of  the  Parliaments  received  their  places  from 
the  king,  and  held  them  at  his  will.  Furthermore,-  to  prove 
their  long  descent,  the  Parliaments  should  possess  some 
of  the  attributes  belonging  to  the  assemblies  of  the  old 
dynasties;  but  they  were  only  called  upon  to  deliberate,  con- 

1  Boullee,  Hist,  des  Etats  G6ne"raux  et  autres  Assemblies  Representa- 
tives cle  France,  depuis  1302  jusqu'en  1629. 

2  Beugnot,  Comte  de,  Documents  Im'dits  sur  1'  Hist,  de  Franc  1839. 
Les  Glim,  vol.  i,  preface,  p.  23.    The  last  fifty  years  have  been  remarkably 
fruitful  in  investigations  and  descoveries,  shedding  light  upon  the  history 
of  France.     The  student  of  history  has  no  more  precious   store-house  of 
new  and  valuable  material  than  the  magnificent  "  Collection  de  Documents 
Incdits  sur  1'  Histoire  de  France"  still  in  course  of  publication  by  the 
Ministry  of  Public  Instruction. 

8  Essai  sur  les  rnoeurs  et  1'esprit  des  nations. 


16 

cerning  peace  and  war,  or  money  grants.  The  whole  spirit  of 
their  institution  confined  them  to  the  administration  of  justice 
and  the  registration  of  edicts.  Not  until  after  the  meeting  of  the 
Estates  at  Blois  in  1576  do  we  find  them  asserting  themselves  to  be 
the  delegates  of  the  States-General,  and  as  such  called  to  discuss 
great  state  interests,  and  this  pretension  rests  upon  a  statement 
casually  introduced.1  The*  members ,  of  the  Parliament  them- 
selves were  divided  upon  this  question  as  numerous  references 
prove.2  The  burden  of  proof  seems  to  favor  the  theory  that 
has  become  generally  adopted  by  the  jurists  and  historians  of 
the  19th  century  that  the  Parliament  of  Paris  is  not  the  repre- 
sentation of  the  old  national  assemblies  or  mallums,  not  a  special 
creation  of  any  one  king,  but  the  outgrowth  of  the  king's 
council.  This  charged  at  all  times  with  the  political  affairs  of 
the  kingdom,  by  the  extension  of  royal  power  and  the  increase  of 
royal  justice,  was  inevitably  led  to  separate  a  section  of  the 
council  and  to  devolve  upon  it  the  administration  of  justice. 
This  section  by  the  natural  process  of  growth  became  the 
Parliament  of  Paris  whose  functions  were  legally  recognized  by 
the  ordinance  of  Philippe  le  Bel. 


1  Boullee's  Hist,  cles  Etats  Gdnmmx,  p.  50.     "  II  faut  que  tons  edits 
soient  verifies  et  comme  control^  us  cours  de  Parl." 

2  Fayard,  Speech  of  Chancellor  Oisie,  vol.  i,  p.  1. 
BoullCe  Etats  Gem'raux,  vol.  i,  p.  5. 

Guizot,  Hist,  de  France,  vol.  v,  p.  216. 


17 


Composition  of  the  Parliament  of  Paris. 


To  describe  the  organization  of  the  Parliament  of  Paris,  is  to 
explain  that  of  all  others  as  they  were  modeled  upon  it.  The 
Parliament  was  divided  originally  into  three  chambers;  the 
Chambre  des  Requetes  which  tried  all  cases  instituted  directly 
before  the  Parliament;  the  Chambre  des  Enquetes,  which  had 
preliminary  consideration  of  cases  of  appeal,  and  the  Grand, 
Chambre,  (identical  with  the  Chambre  aux  Plaids),  where 
appeals  were  finally  heard  and  decided.  Afterward  was  added 
the  criminal  chamber,  or  La  Tournelle. 

The    Chambre    des    Requetes,    or    Chamber    of    Petitions, 

existed  from  very  early  times,1  and  was  organized  to  hear  and 

answer  petitions.      Finally  it  considered  most  suits  of 

Chambre  des 

Jeqr.etes.  original  jurisdiction  brought  before  the  court. 
During  the  last  two  centuries,  it  was  especially  occu- 
pied with  "  letters  of  committimus,"2  which  drew  causes 
from  all  parts  of  France.  The  jury  system  had  now  entirely 
disappeared,  but  the  number  of  judges  in  this  Chamber  partly 
atoned  for  the  lack  of  the  more  popular  element.  Law 
suits  were  heard  partly  on  oral,  partly  on  written  testimony. 
Decisions  were  not  final,  but  could  be  appealed,  either  to  the 
Chamber  of  Inquiry,  or  the  Great  Chamber. 

The    Chambre  des    EnquOtes,  or  Chamber  of  Inquiry,  heard 

1  An  edict  of  Nov.  1291,  clearly  refers  to  it. 
8  Sir  J.  Stephens,  Lect:  on  Hist,  of  France,  212. 
3 


18 

appeals  from  the  Baillis,  Pre"vots,  and  other  inferior  tribunals.  It 
chunbredcs  to°^  niore  especial  cognizance  of  cases  which  were 

Enquetes.  (Jecided  on  written  proof.  The  result  of  their  de- 
liberations was  reported  to  the  Great  Chamber,  where  the  decision 
was  pronounced,  sealed,  and  placed  upon  the  registers.  There 
were  five  Chambers  of  Inquiry  in  the  Parliament  of  Paris, 
three  in  the  Parliament  of  Toulouse,  and  two  in  the  other  parlia- 
ments. Their  successive  creation  was  brought  about  less  by  the 
multitude  of  law  cases,  than  the  necessity  of  procuring  money, 
and  hence  the  sale  of  new  offices.  * 

The     highest    branch    of    the    Parliament    was   the    Great 

Chamber.      Apart  from  the  professional  members  of  the  court, 

the  peers  of  France  and  the  princesses  of  the  blood  had 

chambre.      geatg   in    ^    j3O^y<      ^  member  of  the    Parliament 

obtained  admittance  to  the  Great  Chamber  when  he  became  the 
oldest  member  of  the  body  to  which  he  had  been  assigned  on 
his  entrance.  All  the  plentitude  of  parliamentary  authority 
centered  in  the  Great  Chamber.  The  judgments  reached  by  the 
other  sections  were  brought  here  for  ratification.  Matters  of 
State  as  well  as  the  highest  legal  questions  were  here  discussed. 
The  exceptional  position  of  the  Great  Chamber  of  the  Parlia- 
ment of  Paris  at  the  capital  of  the  kingdom,  and  its  priority  in  age 
led  it  to  arrogate  to  itself  many  cases  which  never  occupied  the 
provincial  Parliaments.2  At  its  dissolution  in  1789,  it  was  com- 
posed of  forty-two  active  members;  viz.,  the  Premier  President, 
four  senior  Presidents-a-mortier,  so  styled  from  their  caps,  and 
thirty-seven  counselors.  The  three  Chambers  were  the  great 
sections  into  which  the  Parliament  of  Paris  was  first  divided. 
As  its  jurisdiction  increased  other  subdivisions  took  place. 


1  Bastard  d'  Estang,  Les  Parl  de  France,  vol.  i,  p.  204. 

a  Merilhou,  M.   F.^Les  Parl.  de  France.     Leur  caractire  politique 
depuis  Philippe  le  Bel,  jusqu'en,  1789.     Paris,  1863,  p.  18. 


19 

In  1380,  during  the  reign  of  Charles  VI,  the  usage  was 
introduced  of  submitting  certain  civil  and  criminal  matters  of 
LaTourndie.  slight  importance  to  the  judgment  of  a  chosen 
number  of  counselors.  An  edict  of  Francis  I,  1515,  formed 
these  into  a  Chamber  with  enlarged  jurisdiction,  and  later  it 
acquired  the  exclusive  'right  of  considering  all  criminal  cases,  l 
except  the  trials  of  nobles  or  great  public  officers.  The  mem- 
bers of  the  Tournelle  varied  from  twenty  to  thirty  and  and  were 
furnished  in  rotation  from  the  other  Chambers  in  order,  as  it  was 
humanely  stated,  "that  the  habit  of  condemning  men  and 
sentencing  them  to  death  should  not  alter  the  natural  clemency 
of  the  judges  and  render  them  inhuman."  Some  would  derive 
the  name  from  this  custom,1  others8  would  obtain  it  from  the 
tower  in  which  the  criminal  Chamber  at  Paris  held  its  sittings. 

The  Grand   Jours  or  Great  Days  were  courts  or  commissions 

of  inquiry   held    at   irregular   intervals    and  for  short  periods  of 

time    by   the    special   order   of  the    kingr.     A  certain 

I-es   Grand  »  *  • 

number  of  parliamentary  counselors  were  deputed  to 
take  charge  of  these  at  the  great  cities  within  a  certain  juris- 
diction. They  had  authority  to  summon  all  magistrates,  to  hear 
complaints,  to  pursue  the  guilty,  and  if  need  be  to  pronounce 
sentences  of  death.  The  decrees  of  the  Grand  Jours  were  ex- 
ecuted directly,  without  appeal  to  the  Parliaments.8 

In  the  early  days  of  Parliament  in  the  interval  from  one 
Parliament  to  another,  judgments  were  rendered  by  commission- 
La  chambre  ers  appointed  by  the  king.  A  letter  of  Charles 

tk-s 

vacations.      VII,  of  1454,  enjoins  upon  the  Parliament  a  sufficient 
number  of  sessions,    notwithstanding   the    vacations,  to  examine 

1  Desmaze,  C.,  Le  Pad.  de  Paris,  vol.  i. 

2  Bastard,  vol.  i,  p.  345. 
8  Bastard,  vol.  i,  p.  369. 

Stephens,  Lect.  viii,  p,  215. 


20 

the  law  suits  that  had  accumulated.  By  degrees  the  Vacation 
Chamber  assumed  the  form  it  retained,  and  annually  on  the  ninth 
day  of  September  it  was  opened  by  the  Premier  President,  who 
presided  at  its  first  session.1 

The  edict  of  May  1576,  granting  certain  legal  privileges  to 
Huguenots,  gave  rise  to  Chambers  that,  with  the  exception  of 
chambrede  tne  Parliament  of  Paris,  were  composed  half  of 

Protestants,  half  of  Catholics.  This  Parliament  was 
not  so  generous  in  its  acknowledgment  of  "  the  religion,"  as  but 
one  Protestant  belonged  to  the  section.  These  Chambers  were 
suppressed  by  Louis  XIV  in  Jan.  1669. 2 

The  Marble  Table  decided  all  matters  concerning  rivers  and 
forests,  fishing  and  hunting.  The  name,  the  same  in  all  the 
Table  de  Parliaments,  perpetuates  the  memory  of  the  great 

marble  table  formed  from  'a  single  slab  in  the  Palais 
de  Justice  at  Paris. 

The  summary  of  the  diverse  jurisdictions  of  the  Parliament 
would  be  incomplete  were  not  the  magistrates  mentioned  who 
Minister*  formed  the  Ministere  Publique  in  the  old  sovereign 
Pubhque.  courts.  These  law  officers  of  the  crown  considered 
collectively  were  called  the  Parquet.  They  represented  the 
king,  then  the  very  core  of  authority,  and  their  duty  was  the 
enforcement  of  the  penal  law  arid  the  protection  of  the  rights  of 
the  crown,  or  society  at  large.  At  the  head  of  the  Parquet  was 
the  Procureur  General,  who  had  the  superior  direction  of  justice 
throughout  all  France.  His  functions  were  numerous.  To  him 
belonged  all  cases  involving  the  rights  of  the  king,  care  of  the 
Royal  Domain,  titles  of  honor,  punishment  of  oppression,  and 
pursuit  of  criminals.  He  also  had  the  oversight  of  prisons  and  of 
charitable  and  municipal  organizations.  Through  him  the  king 

1  Desmaze,  vol.  i. 

8  Bastard,  vol.  i,  p.  288. 


Of    TH*        ^r 

UNIVERSITY 

df 
AWS&8&S   21 

rT7~~ 

communicated  treatises,  law  projects  and  financial  demands  to 
the  Parliament,  and  through  him  the  Parliament  signified  to  the 
king  its  willingness  or  unwillingness  to  act.  When  edicts  were 
registered  the  Procureur  General  gave  his  conclusion  in  writing; 
if  a  registration  was  denied,  then  the  First  Advocate  General 
spoke  in  the  king's  presence  to  demand  registration  or  order  a 
Bed  of  Justice,  for  the  curious  distinction  was  made  that  uthe 
Advocate  of  the  king  shall  present  all  resolutions  publicly 
proposed  by  speech,  and  all  conclusions  in  writing  shall  be  signed 
by  the  Procureur."1  The  "  Gens  du  Roi "  properly  so  called 
were  the  four  superior  officers,  the  Procureur,  the  First,  Second 
and  Third  Advocate  General,  but  the  assistant  officers  of  inferior 
rank  were  often  classed  with  the  "  Gens  du«  Roi."  Any  officer 
in  his  quality  as  "  Gens  du  Roi "  was  privileged  to  speak  with 
head  covered  and  without  interruption  as  he  represented  the 
king. 

The  Chancellor  held  the  first  position  in  the  kingdom  until 
the  Revolution,  and  in  the  Parliament  he  had  a  voice  and  a  seat 
The  cirm  after  the  princes  of  the  blood.  Although  strictly  not 

belonging  to    the    Parliament,  he    was    considered   a 
member  and  his  influence  was  great. 

The  head  of  the  Parliament  was  the  Premier  President,  and 
with  him  were  associated  nine  Presidents-;l-mortier,  who  were 
Th-Presi-  considered  as  representing  him,  and  in  his  absence 

presided  over  the  assembled  Chambers. 

1   Bastard,  vol.  i,  p.  596. 


22 


The  Members. 


The  edict  of  1302  divided  the  Parliament  into  three  Cham- 
bers; an  edict  of  1374  fixed  the  number  of  its  members  at  seventy- 
Division  into  ei£ht  counselors,  forty-four  ecclesiastics,  thirty-four 
laymen  and  three  presidents.1  This  number  varied 


tionment  of  -,•  rr 

duties.          greatly  at  different  epochs. 

The  sale  of  offices  caused  the  needs  of  the  treasury  to  be 
consulted  more  frequently  than  the  necessities  of  justice.  At 
the  suppression  of  the  Parliaments  in  1789,  the  Parliament  of 
Paris  was  divided  into  seven  •  Chambers,  a  Premier  President, 
nine  Presidents-u-mortier,  fifteen  Presidents  du  Chambre,  one 
hundred  and  fifty  Counselors,  a  Procureur  General,  three 
Avocats-Generaux  and  nine  substitutes.  Furthermore,  there 
were  two  Greffiers-en-chef,  or  Registrars,  twenty-five  Commis- 
Greffiers  or  Assistant  Registrars,  and  four  Secretaries.  Such 
was  the  great  array  of  legal  force  which  a  single  resolution  on 
that  eventful  night  in  November,  1789,  swept  to  the  four  winds. 
An  ordinance  of  Philippe  le  Long  required  the  members  of 
Parliament  to  reside  at  Paris.  All  the  great  church  dignitaries  were 
continued  at  once  excluded,  save  the  Archbishop  of  Paris,  and 

Parish"0'  1  the  Abbot  of  St.  Denis,  and  all  of  the  great  lords  who 
could  not  afford  to  maintain  an  establishment  at  Paris  separate 
from  their  ancestral  castles.  Thus  the  lawyers  were  left  in 
undisputed  possession  of  the  supreme  court  of  justice. 

The  king  at  first  assigned  persons  to  sit   for  a  session  or  at 

1  Dictionnaire  de  la  Politique,  Maurice  Block,  Paris,  1880,  vol.  ii,  p.  503. 


23 

his  pleasure,  but   by   1319   the  practice   obtained   of   appointing 
f        counselors  for  life.     As  late  as  1467,  however,  there  is 

Tenure  of 

an  edict  of  Louis  XI,  forbidding  the  removal  of 
judges,  save  for  just  cause.  This  makes  it  probable  that  there 
was  not  entire  freedom  from  arbitrary  removal  until  after  that 
date. 

A  further  concession  was  made  to  the  power  of  the  Parlia- 
ment by  permitting  it  to  name  a  number  of  candidates  to  any 
s-iic  of  vacancy,  from  which  the  king  made  his  choice.  When 

such  places  became  a  matter  of  sale,  the  king's  power 
of  appointment  was  exercised  without  restraint.  The  offices  of 
Parliament  were  a  constant  temptation  to  a  needy  monarch.  The 
members  enjoyed  high  consideration  and  opportunities  for  profit 
were  not  wanting.  The  sale  of  judicial  dignities  can  readily  be 
traced  to  the  days  of  Philippe  le  Bel,  but  it  was  reserved 
for  the  Father  ,of  his  Country,  Louis  XII,  to  systematize  the 
practice  and  to  recognize  the  profits  as  an  annual  source  of 
revenue.  Francis  I  created  a  new  Chamber  with  two  Presidents 
and  eighteen  Counselors.  In  the  reign  of  Louis  XIV,  the  office 
of  President-a-mortier  was  sold  for  500,000  francs,  that  of  Coun- 
selor for  150,000  francs,  that  of  Procureur  General  for  700,000 
francs. 

The  reign  of  the  best  of  the  Bourbons  saw  a  further  change. 
M.  Paulet,1  secretary  of  the  Parliament,  advised  a  tax  on  official 
offices  made  incom^s-  Sully,  who  was  casting  about  for  ways  to 
'ary'  raise  money,  eagerly  adopted  the  suggestion.  This 
tax,  the  Paulette,  was  an  assessment  of  one-sixtieth  on  the  con- 
dition that  the  office  should  be  made  hereditary.  Its  owner 
might  sell  it  during  his  life  time,  or  at  his  death  it  could  be  dis- 
posed of  with  his  houses  and  lands.  Ordinarily  one  of  the  sons 

1  Kitchin's  Hist,  of  France,  vol.  ii,  p.  459. 
Mcrilhou,  M.  F.,  Les  Parlde  France,  p.  307. 


24 

took  the  place  and  thus  were  founded  those  judicial  families 
which  formed  a  new  order  of  nobility.  This  was  an  important 
constitutional  step,  for  it  made  the  magisterial  nobility  a  class. 
The  influence  of  this  change  remains  to  be  seen.  So  acute  an 
observer  as  Montesquieu1  defends  the  Paulette.  It  is  certain 
that  a  spirit  of  independence  and  of  traditionary  pride  grew  up  in 
these  bodies,  and  tended  to  make  them  fearless  administrators  of 
the  powers  entrusted  to  them.  Count  Bastard  d'Estang,  who 
belonged  to  a  parliamentary  family  that  had  had  representatives 
in  the  Parliament  of  Toulouse  since  the  fourteenth  cantury  says  :8 
"  The  organization  of  the  ancient  French  society,  which,  by  the 
incessant  work  of  the  individual  elevated  each  generation  beyond 
the  one  that  had  preceded  it,  demanded  the  sacrifice  of  an  entire 
life  time.  Living  in  the  certainty  of  the  elevation  of  his 
posterity  the  father  prepared  slowly  and  surely  for  the  future  of 
his  son,  and  France  gained  in  stability."  That  there  were  evils 
is  certain.  Judicial  positions  must  often  have  been  filled  by 
incompetent  men,  whose  tastes  and  aptitudes  were  as  unfitted  to 
the  severe  and  monotonous  labors  of  a  counselor  as  were  those 
of  Montaigue,3  while  they  may  not  have  had  so  promptly  as  did 
he  the  good  sense  to  resign  their  privileges  and  emoluments. 
La  Bruyere  complains  that  youths  hardly  out  of  school  passed 
from  the  birch  to  the  ermine.  Furthermore,  the  Parliamentary 
counselors  who  had  paid  for  their  offices,  or  inherited  them,  wore 
apt  to  consider  themselves  on  the  bench  as  the  guardians  of  their 
own  interests  and  not  as  trustees  of  the  rights  of  society.  The 
most  serious  evil  came  with  the  hereditary  tenure  of  the  office. 

1  Montesquieu,  Esprit  des  Lois,  liv.  5,  chap,  xix:     "  Cette  venalite  est 
bonne  daus  les  6tats  rnonarchiques,  parce  qu  'elle  fait  faire,  comuie  im 
metier  de  famille,  ce  qu  'on  ne  voudrait  pas  entreprendre  pour  la  vertu 
qu  'elle  distioe  chacun  a  son    devoir,  et  rend    les  ordres  de  1'  ctat    plus 
perinanents. " 

2  Bastard,  vol.  i,  p.  138. 

3  Demogeot,  Hist,  de  la  Lit.  Fran.,  p.  283. 


25 

Previously  the  members  of  Parliament  had  been  the  natural 
leaders  of  the  Third  Estate,  hence  forward,  they  were  but 
another  nobility  whose  sympathies  were  with  the  king  that 
created  and  maintained  them,  not  with  the  people  and  their 
constitutional  privileges. 

There  must  have  been,  however,  strong  influences  toward 
justice  and  uprightness  to  produce  so  illustrious  a  body  of  men 
i  ives  of  the  as  tne  French  magistracy.  What  country  can  point 
Magistrates.  ^Q  &  ju(jge  more  incorruptible  and  loyal  than1  Achille 
de  Harlay,  more  courageous  and  unflinching  than  Matthieu  Mole",2 
more  learned,  wise  and  influential  than  d'  Aguesseau?8  Beugnot 
says:4  "The  memorable  services  rendered  the  country,  by  the 
Parliament  of  Paris,  and  the  hereditary  virtues  of  its  members 
were  the  sources  of  the  authority  which  it  exercised  our  minds  as 
well  as  over  the  affairs  of  State."  Bastard  declares:5  "If  any- 
thing can  inspire  veneration  for  our  ancient  magistracy,  it  is 
intimate  acquaintance  with  their  daily  life."  Certain  it  is,  that 
in  the  early  days  of  Parliament,  the  faults  of  the  members  were 


1  Achille  de  Harlay,  First  President  of  Parliament  of  Paris  in  1582. 
lie  was  noted  for  his  learning   and  integrity,  and  firmly  opposed  the  de- 
signs of  the  League  Nouvelle  Biographie  Gonerale. 

2  Mol'-,  Matthieu,   First  President  during   the   war  of  the   Fronde; 
conspicuous  for  his  intrepidity  in  quelling  the  Insurrection.     Memoires  de 
Cardinal  de  Retz.     Portraits. 

3  D'  Aguesseau,  "a  man  who  did  honor  to  France  by  his  virtues,  his 
profound  and  varied  learning,   and   his   enlightened   views  on  jurispru- 
dence."    La  Harpe,  Cours  de  Lit.,  tome  xiv,  chap.  1. 

4  Beugnot,  Document  inedits,  Les  Olirn,  preface  p.  iii. 

5  Bastard's  Pad.  de  France,  vol.  i,  p.  199. 

Sir  Henry  Maine,  Ancient  Law,  p.  79.  "The  French  jurists  formed 
the  best  instructed  and  nearly  the  most  powerful  class  in  the  nation.  In 
all  the  qualities  of  the  advocate,  the  judge  and  legislator,  they  far  excelled 
their  compeers  throughout  Europe." 

J)e  Tocqueville.     The  Old  Regime  and  the  Revolution,  chap.  11. 

"No  doubt  the  Parliaments  thought  more  of  themselves  than  of  the 
public  good,  but  when  it  was  necessary  to  defend  I  heir  independence,  and 
ilicir  honor,  they  were  always  intrepid,  and  gave  heart  to  those  who 
surrounded  them." 

Also,  cf.  Merilhou,  Les  Pad.  de  France,  p.  243,  and  Baird's  Rise  of 
the  Huguenots  in  France,  vol.  i,  p.  334. 


26 

faithfully  corrected.  An  ordinance  of  1318  forbids  the  counselors 
to  eat  or  drink  with  those  who  had  suits  before  them,  and  further 
enjoins  upon  them  to  attend  the  sessions  and  to  leave  their  seats 
but  once  in  the  morning.  It  then  adds,  "It  is  a  great  disgrace 
that  while  the  court  is  in  session,  its  members  should  be  frolicing 
and  walking  about  the  halls  of  the  Palace."  We  may  fear, 
however,  that  the  ordinance  was  not  always  effective,  for  the 
witty  President  ^de  Harlay,  descendent  of  the  great  de  Harlay, 
once  caustically  remarked  that  "  if  the  gentlemen  of  the  court 
who  talked  would  make  no  more  noise  than  those  who  slept,  it 
would  be  a  great  favor  to  those  who  listened  "  Louis  XIV.  him- 
self did  not  disdain  to  inform  Chancellor  Le  Tellier  that  he 
had  seen  the  judges  on  their  way  to  the  Palace  with  cravats, 
gray  clothes,  and  canes  in  their  hands,  and  they  must  be  admon- 
ished that  such  a  costume  was  unbecoming  a  magistrate. 

This  was  indeed  in  contrast  to  the  usual  magnificence  affect- 
ed by  the  members.  The  richness  of  the  costumes  worn  often 
Costumes  excited  the  ridicule  of  philosophers  and  satirists.1  At 

Magistrates,  the  morning  sessions  from  All  Saints  Day  to  the 
Annunciation  of  the  Virgin,  the  presidents  sat  in  an  ermine  robe 
and  cap;  the  remainder  of  the  year  they  were  arrayed  in  a  scarlet 
robe.  The  counselors  and  advocates  wore  red  robes  with  large 
sleeves  adorned  with  velvet.  The  clerks  of  the  counselors  wore 
violet  robes.  In  the  afternoon  meetings  all  were  arrayed  in 
black  gowns. 

In  the  seignorial  courts  no  fees  were  demanded,  but  when 
lords  and  bishops  were  succeeded  by  legists,  fixed  compensation 
Remuneration  became  needful.  The  oldest  document  concerning 

Magistrates,  the  wages  of  the  magistrates  is  an  account  of  1301, 
preserved  in  the  archives  of  Florence,  which  says  that  the  seig- 
neur presiding  over  the  Parliament  shall  receive  ten  smm  por 

1  Bastard  vol.  i,  p.  166. 


27 

day,  while  the  court  is  in  session.  In  1400  the  First  President  had 
one  thousand  livres  a  year;  l  in  the  reign  of  Louis  XIV,  twelve 
thousand  livers.  At  each  date  the  salary  of  a  President-a-mortier 
was  one-half  these  respective  sums.  Gifts  were  naturally  given 
by  the  grateful  or  anxious  suitor,  which  at  length  became  an 
established  usage,  and  were  known  by  the  suggestive  name  of 
"  epices,"  or  "sweetmeats."  Finally,  they  became  fixed  in  pro- 
portion to  the  labor  involved,  and  in  the  eyes  of  justice  and 
legislation  were  entirely  legitimate  fees,  as  the  stated  salaries 
were  small  and  often  poorly  paid.  Society  recompensed  the 
magistrates  by  consideration,  and  kings  by  honors  and  privileges; 
at  the  opening  of  the  great  movement  which  closed  their  exist- 
ence, they  were  in  full  possession  of  all  the  privileges  and 
exemptions  of  the  nobility. 

Nearly  all  the  Parliaments  re-opened  November  12th.      The 
day  was  announced  at    Toulouse    by    loud  peals  from  the  tower 
Oieniny  of      cl°ck?  which  rang  only  on  this  occasion  and  at  the  ob- 
sequies of  one  of  its  members.     The  day  was  observed 
at  Paris  by  elaborate  ceremonies. 

The  counselors  began  their  duties  at  early  hours.  At 
Toulouse,  the  Palace  was  opened  at  five  o'clock,  but  finally  at 
Hours  of  Toulouse  and  Paris  the  opening  hour  became  six 
opening.  o'clock.  Mondays,  Thursdays  and  Fridays  the  Great 
Chamber  met  and  continued  in  session  until  10  a.  m.  The  order  of 
business  was  unvarying.  From  6  a.  m.  until  7  a.  m.  reports  were 
heard;  at  7  a.  m.  the  arguments  of  cases  began,  and  with  a  short  in- 
termission for  breakfast,  was  continued  until  10  a.  m.;  then  reports 
were  made,  consultations  were  given,  and  other  miscellaneous  busi- 
ness transacted.  Tuesdays  and  Saturdays,  afternoon  sessions  were 
held.  Wednesdays  and  Saturdays  were  reserved  for  important 
matters  connected  with  State  policy  and  registrations,  when  the 

1   About  $1,400  of  our  money,  and  far  more  in  purchasing  power. 


88 

Great  Chamber  sat  with  closed  doors.  In  the  eighteenth  century 
these  early  hours  had  not  changed,  and  the  notorious  case  of  the 
Diamond  Necklace  called  together  one  hundred  and  eighty-seven 
members,  for  nine  months  at  the  early  morning  hour,  listening  to 
testimony  and  arguments  to  vindicate  a  queen. 

Great  interest  always  attaches  to  local  surroundings,  and  the 
pluoes  where  the  great  ceremonies  of  the  ancient  magistracy  took 
Paiiisde  place  deserve  description.  In  several  provinces  the 
justice.  kings  had  given  to  the  Parliament  one  of  their  palaces. 
These  assumed  and  retained  the  name  "Palais  de  Justice."  Two 
of  these  palaces  are  of  great  antiquity  and  abound  in  historical 
reminiscence.  The  Palais  de  Justice  of  Toulouse  had  been 
inhabited  by  the  ancient  kings  and  counts  of  Toulouse,  and 
traditions  said  that  Roman  magistrates  had  pronounced  decisions 
on  this  site.  1  The  Palais  de  Justice  of  Paris  is  an  old  kingly 
residence  on  a  little  island  formed  by  the  Seine,  in  the  heart  of 
old  Paris.  St.  Louis  gave  it  for  the  use  of  the  Parliament,  and 
Philippe-le-Bel  greatly  enlarged  it,  so  it  was  reputed  in  his 
day  one  of  the  most  beautiful  works  of  architecture  *  in  the 
world.  The  general  assemblies  of  all  the  Chambers  was  held  in 
the  hall  of  St.  Louis.  No  single  hall  in  the  world  unless  it  be 
the  great  oaken  hall  at  Westminister,  has  witnessed  such  varied 
and  tragic  scenes.  On  more  than  one  occasion  the  Parliament 
in  this  place  maintained  the  rights  and  nationality  of  France 
against  the  intrigues  and  disloyalty  of  great  nobles.8  Here  in 
1589  President  Le  Maitre  declared  "that  no  treaty  shall  be  made 
for  the  transfer  of  the  State  and  crown  of  France  to  foreign 
princes."  Here  the  little  king  Louis  XIV.  was  taken  when  five 
years  old  to  assure  the  Parliament  of  his  good  will,  and  here  a 


1  Bastard,  Parl.  de  France,  vol.  i,  p.  184. 

2  Antiquites  de  Paris,  p.  135. 

3  Guizot,  Hist,  de  France,  vol.  v,  p.  52. 


89 

dozen  years  later  he  treated  it  with  a  contumely  that  was  never 
forgotten.  Here  during  the  war  of  the  Fronde  a  price  was  set 
on  Mazarin's  head,  and  his  fine  library  of  four  thousand  volumes 
was  offered  for  sale  to  pay  the  reward.1  Here  President  de 
Mesmes  administered  a  well  merited  rebuke  to  the  Prince  of 
Conti,  who  had  introduced  an  envoy  from  Spain  to  treat  against 
the  king  of  France.  u  What!  is  it  possible  that  a  prince  of  the 
blood  should  propose  to  give  a  seat  upon  the  fleurs-de-lis  to  the 
most  cruel  enemy  of  the  fleurs-de-lis?"  What  whirligig  of  time 
could  present  a  greater  contrast  than  this  same  hall  when  the 
stately  Presidents  and  the  gorgeously-robed  advocates  were 
succeeded  by  the  Sans-Culottes  of  the  Revolutionary  Tribunal. 
The  great  hall  was  re-christened  La  Salle  d'  Egalite,  and  a  court 
of  judges  was  formed,  which  to  the  grave  and  learned  counselors 
of  other  days  would  have  seemed  the  veriest  rabble.  The 
populace  of  Paris  flowed  in  and  out  while  Marie  Antoniette  was 
sentenced  to  death  Tor  the  crime  of  being  a  queen,8  and  they 
looked  on  in  astonished  silence  as  the  twenty-two  Girondists  who 
were  to  die  on  the  morrow,  marched  forth  singing  the  Marseil- 
laise. *  From  here  Camille  Desmoulins,  Mme.  Roland,  and 
fit) ally  Robespierre  himself,  the  Terror  incarnate,  went  forth  in 
turn  to  the  same  fatal  doom.  4"  The  hall  has  been  sadly  changed. 
The  visitor  who  gazes  at  reputable  appearing  advocates  in  gowns 
and  caps,  sharp-featured  notaries,  uneasy  clients  and  wearied 
judges,  sees  little  to  bring  back  the  Parliament  of  Paris  or  the 
Revolutionary  Tribunal.  The  voice  of  Dan  ton  has  ceased  to 
vibrate,  the  eloquence  of  Harlay  no  longer  delights  the  ear.  The 
prose  of  the  nineteenth  century  has  replaced  the  pathos  of  the 
eighteenth,  the  pride  and  dignity  of  the  seventeenth." 

1  Guizot,  Hist,  de  France,  vol.  v,  p.  859. 

8  Thiers'  Hist,  of  French  Revolution,  vol.  iii,  p.  11)0. 

3  Martin  H.,  Hist,  de  France,  vol.  vi,  p.  612. 

4  Am.  Law  Rev.,  Parl.  in  France,  vol.  xii,  p.  262. 


30 

1  Jean  de  Montluc,  a  Counselor  under  St.  Louis,  had  for  his 
own  use  made  a  record  of  the  most  ancient  edicts  and  most 
The  Re  isters  ^mPortant  decisions.  In  1257  he  was  appointed 
or  oiim.  "greffier-civil,"  or  Registrar  to  the  court.  The  oldest 
"greffes,"  or  registers,  are  called  the  "  Olim,"  because  the  third 
volume  begins  with  the  words  "Olim  Homines  de  Bayona." 
From  the  great  utility  of  these  registers  in  giving  access  to 
ancient  law,  the  thought  arose  that  nothing  had  the  force  of  law 
unless  contained  in  them.  Gradually  it  became  a  custom,  then 
an  indispensable  formality,  to  inscribe  all  edicts  in  the  books  of 
Parliament.  Philippe  le  Bel,  who  had  a  keen  sense  of  financial 
value,  sold  these  volumes  to  "good  and  worthy  people,"  and 
many  a  monarch  after  him  thought  a  favor  well  recompensed 
by  the  gift  of  an  important  "greffe."  Not  until  the  time 
of  Colbert  were  these  records  collected  at  the  Palais  de  Justice. 
The  sagacious  minister  knew  well  their  importance  and  did  what 
he  could  to  repurchase  the  volumes,  which  formed  many  a 
valuable  heirloom.  Some  that  had  been  retained  at  the  Palais  de 
Justice  had  been  burned  in  the  fire  of  1618,  and  at  the  present 
time  the  collection  is  quite  incomplete. 


The  Parliaments. 


The  edict  of  Philippe  le  Bel,  of  1302,  had  ordained  that 
"  for  the  convenience  of  his  subjects,  and  the  expedition  of  law 
cases  there  should  be  held  each  year,  two  sessions  of  the  Parlia- 


1    Bastard's  Hist,  ties  Par!.,  vol.  i,  p.  326. 
Voltaire,  Parl.  tie  Paris,  ed.  1760,  p.  56. 
Desinaze,  C.,  Le  Parl.  de  Paris,  vol.  1. 


31 

ment   of   Paris,  two    Exchequers    of   Rouen,   two    Grand    Jours 
at  Troves,  and  a  session  of  the  Parliament  at  Toulouse."1 

The  date  of  organization,  and  the  founder  of  each  Parliament, 
so  far  as  accurately  known,  are  given  in  the  following  list:  a 
Paris,  1302  Philippe  le  Bel, 


Toulouse,   -j  -  Before  Charles  VII  the  history  not  well  known, 

Grenoble,  1453  Charles  VII. 

Bordeaux,  1462  Louis  XI. 

Dijon,  1476  Charles  VII. 

Rouen,  1499  Louis  XII. 

Aix,  1501                                                                 -    Louis  XII. 

Pau,  1519  Francis  I. 

Rennes,  1553  Francis  II. 

Metz,  1633  Louis  XIII. 

Besangon,  1674  Louis  XIV. 

Douai,  1686     -  Louis  XIV. 

Nancy,  1774  Louis  XV. 

The  organization  of  the  Parliament  of  Paris,  its  system  of 
administering  justice  and  its  judicial  rights  and  privileges  were 
the  model  after  which  the  others  were  formed.  They  differed 
from  it  only  in  those  variations  which  local  and  peculiar  causes 
required. 

Although  Parliaments  were  instituted  by  kings,  they  consid- 
ered themselves  the  protectors  of  the  rights  of  the  province 
Parliament  as  of  provinces  within  the  bounds  of  their  authority. 

Guardian  of 

theProTincc.  The  whole  of  the  eighteenth  century  was  marked  by 
struggles  to  maintain  their  independence.  Furthermore,  no  prov- 
ince was  was  considered  as  finally  annexed  to  France  until  it  had 
been  placed  under  the  jurisdiction  of  one  of  these  sovereign  courts. 
After  several  changes  in  custom  and  opinion,  the  position  was 
at  length  taken,  that  each  Parliament  was  the  sovereign  court 

1  "  Propter  coinmoduni  subditorum  nostrorum  et  expeditionem  causa 
rum,  proponiinus  ordinare  quod  duo  Parlanienta  Parisiis,  duo  Scat-aria 
Rotomagi,  dies  Trecenses  bis  tenebuntur  in  anno,  et  quod  Parlanientum 
Tolosae  tenebitur  sicut  solebat  teneri  temporibus  retroactis." 

8  Bastard,  vol.  ii,  p.  103. 

Desmaze,  vol.  i,  table,  p.  1. 


32 

AH  Pariia-      within  its  own   precinct.     No  appeal  could  be  made 
Sovereign,      even  to  the  Parliament  of  Paris,  and  decisions  made 
by  any    Parliament   were    to   be    executed   in   all   parts  of  the 
kingdom. 

Gradually  the  doctrine  arose  that  the  Parliaments,  taken  col- 
lectively, formed  one  great  judicial  institution,  all  of  whose  mem- 
p  ,.  bers  had  equal  privileges  and  inter-community  of 

as  classes.  rights>i  The  parliament  of  Paris  was  the  first  Class, 
and  all  together  constituted  a  single  body,  which  represented  the 
kingdom  of  France.  If  this  pretension  had  been  generally 
admitted,  the  form  of  government  would  have  been  transferred 
from  an  hereditary  king  to  an  assembly  of  hereditary  magistrates. 


The  Legislative  and  Political  Rights. 


Having  studied  the  Parliaments  as  judicial  organizatiuns, 
there  remains  the  explanation  of  the  legislative  and  political 
power,  with  which  time,  custom  and  the  tacit  consent  of  both 
nation  and  monarch  had  invested  them.  There  are  a  number  of 
obvious  reasons  why  this  body  of  magistrates  should  at  length 
find  themselves  clothed  with  an  authority  to  which  the  judicial 
history  of  no  other  country  can  furnish  a  parallel. 

To  a  certain  extent  legislative  power  had  been  conferred 
upon  it.  Whenever  a  roval  law  was  defective  in  any  detail,  the 
Parliament  could  issue  an  arrest  or  decision  supplying 


cnsKtive 

"cr"       this  dofrct      2  The  arrot  was  provisional  only  until  (he 

1  Voltaire,  Parl.  de  Paris,  chap.  Ixvi. 

8  Mtfrilhou,  M.  F.,  Les  Parl.  de  France,  p.  452. 


33 

king  himself  should  remedy  the  fault;  still,  the  right  of  making 
such  amendments  was  a  legislative  privilege  of  high  value,  and 
under  more  favorable  circumstances  might  have  served  as  the 
entering  wedge  to  secure  for  the  Parliament  of  Paris  the  broader 
privileges  of  its  namesake  across  the  Channel. 

We  have  tried  to  prove  that  the  Parliament  of  Paris  was  a 
section  of  the  king's  council,  set  aside  to  consider  judicial  ques- 
Heirs  of  tions.  As  the  clerks  and  lawyers  gradually  replaced 

King's 

Council.  the  barons  and  prelates,  they  tenaciously  held  to  all 
the  privileges  of  those  who  preceded  them,  one  of  the  most 
valuable  of  which  was  the  consideration  of  questions  of  state. 

We  have  seen  how  the  Parliament  gradually  laid  claim  to 
bring  the  representative  of  the  States-General,1  and  whatrecogni- 
iiepresenting  tion  was  given  this  pretension  by  the  assembly  at 
General.  Tours.  As  such,  during  the  long  intervals  which 
separated  the  sessions  of  the  States-general,  it  claimed  the 
character  of  guardian  of  the  rights  vested  in  those  assemblies. 

We  have  also  seen  that  registration  came  to  be  considered 
as  an  indispensable  ceremony,  giving  validity  to  laws,  until  the 
Registration  principle  was  admitted  without  question  that  no.Par- 


.  liameiit  was  bound  to  execute  any  ordinance  until  it 
had  first  been  communicated  to  it,  and  entered  upon  its  records. 
When  the  ancient  kings  desired  to  make  important  modifications 
in  the  general  legislation  of  the  kingdom,  they  had  been  wont  to 
ask  the  Parliament  to  examine  the  project  and  report  their  obser- 
vations upon  it.  The  first  time  that  these  observations  took  the 
form  of  "  remonstrances,"  was  in  the  address  sent  by  the  Parlia- 
ment to  Louis  XI,  touching  the  Pragmatic  Sanction.  8  This 
right  of  observation  and  remonstrance  was  one  of  the  most 
essential  portions  of  the  political  power  of  Parliament.  If  a 

1  MC-rilhou,  M.  F.,  Les  Parl.  cle  France,  p.  454. 

8  Voltaire,  Le  Parlement  de  Paris,  chap.  11.  "Remontrances  toucliant 
les  Privileges  de  1'  E  glise  gallicane. 
5 


34 

remonstrance  was  unheeded  the  next  step  was  to  request  the 
king1  to  withdraw  the  ordinance.  If  this  was  refused,  Parliament 
formally  declined  to  register  it  among  the  records.  This  refusal 
was  only  overcome  by  "lettres  «de  jussion,"  or  a  compulsory  de- 
mand. If  still  registration  was  withheld  a  Bed  of  Justice1  was 
called.  Then  the  king  appeared  in  all  his  majesty,  and  from  the 
summit  of  his  throne  of  justice,  commanded  that  the  edict  should 
be  inscribed  in  the  records.  When  the  court  was  thus  obliged 
to  submit,  the  decree  of  registration  was  preceded  by  a  preamble, 
stating  that  the  decree  was  registered  "  by  the  king's  express 
command,"  and  this  protest  was  entered  upon  the  records.  If 
the  right  of  resistance  did  not  actually  prevail  it  was  asserted, 
and  every  new  assertion  was  supposed  to  add  to  its  strength. 

The  constant  opposition  of  the  Parliaments  of  Paris  to  the 
encroachments  of  the  Court  of  Rome,  was  the  greatest  political 
Registration  service  it  ever  rendered.  By  refusing  registration, 

of 

Pope's  Bull.  an(j  by  remonstrating,  Parliament  succeeded  in  es- 
tablishing a  right  to  intervene  in  ecclesiastical  affairs,  and  won 
for  itself  the  name  of  the  bulwark  of  the  liberties  of  the  Galli- 
can  Church.2  Before  the  statute  of  Praernunire  was  passed  in 
England,  forbidding  appeals  from  the  king's  court  to  the  Court 
of  Rome,  2  an  advocate  of  the  Parliament  of  Paris,  Pierre  do 
Cunieres,  had  in  1329  proposed  this  remedy  against  the  usurpa- 
tions of  the  Church. 

1  besmaze  G,  vol.  i,  p.  119.     "  Lit  de  Justice,"   signifies  the  throne 
upon  which  the  king  was  seated.     It  was  formed  of   five   cushions,  one 
serving  as  a  seat,  another  as  a  back,  two  as  arm  supports,   and  one   as  a 
foot-stool. 

Bastard,  Les  Parl.  de  Fr.,  voi.  i,  p.  19. 

It  has  been  said  that  uLits  de  Justice"  were  so  named,  because  then 
justice  slept;  i.  e.,  the  king's  person  united  both  legislative  and  judicial 
power.  However,  this  designation  also  canie  from  the  arrangement  of 
the  throne. 

2  Voltaire,  Parl.  de  Paris,  1700,  rhnp.  10. 

8  Stubbs,  Constitutional  Hist,  of  England,  vol.  ii,  p.  410.  "The  first 
statute  of  Praeniunire  was  an  ordinance  of  1353." 


35 

The  Parliament  also  established  a  right  to  a  voice  in 
diplomatic  questions.  All  treaties  with  foreign  powers,  before 
Registration  becoming  effective,  required  registration,  and  so  were 

of 

Treaties  subject  to  the  observations,  remonstrances  and  refusals 
of  the  court.  However,  this  right  figures  on  few  occasions  which 
are  historically  important,  and  these  few  clearly  prove  the  real 
impotence  of  the  proud  tribunal,  when  met  by  the  positive 
wishes  of  a  strong  monarch.  When  Francis  I.  desired  to  be 
freed  from  the  humiliating  engagement  of  the  Treaty  of  Madrid, 
he  called  a  meeting  of  the  Parliament  of  Paris,  at  which  were 
present  deputations  from  the  six  other  existing  Parliaments.  He 
gravely  laid  before  them  the  provisions  of  the  treaty,  which  a 
few  days  before  he  had  sworn  by  his  royal  oath  to  fulfill.  He 
asked  their  consideration  of  it,  and  their  opinion  as  to  registra- 
tion. They  as  gravely  replied  that  "  neither  the  treaty,  nor  the 
royal  oath  were  binding;  the  former  not  having  been  the  act  of 
the  king;  the  latter  having  been  exacted  from  him  when  in 
bondage;  that  therefore  he  should  neither  give  up  Burgundy, 
nor  return  into  Spain."  *  One  simple-minded  counselor,  Bishop 
Poncher,  whodid  not  understand  this  little  comedy,  was  so  im- 
prudent as  to  give  it  as  his  opinion,  that  Francis  should  go  back 
to  Spain.  He  thereby  brought  upon  himself,  a  prison  afid  death. * 
The  peculiar  institution  of  the  Ministere  Publique  and  its 
connection  with  the  Parliament,  enabled  the  latter  to  prefer 
.  pretensions  to  political  power,  which  were  sometimes 

Pxjbiique  successful.  The  Procureur  general,  the  chief  of  the 
Parquet,  had  so  important  and  so  diverse  functions,  that  his 
influence  was  felt  in  every  branch  of  administration,  and  as  one 
of  the  most  powerful  members  of  the  Parliament,  the  latter  often 
identified  itself  with  his  exercise  of  power.  * 

1  Kitchin's  Hist,  de  France,  vol.  ii,  page  201). 

2  Tin*  account  most  favorable  to  Francis  I,  concerning  the  treaty  of 
Madrid  is  found  in  Duruy,  Hist,  de  France,  vol.  ii. 

*  Vicointe  de  Bastard  d'  Estang.     Les  Parl.  de  France,  vol.  i,  p.  297. 


Political  History  of  the  Parliaments. 


When  the  Parliament  of  Paris  was  consolidated  by  Philippe 
le  Bel,  he  had  no  thought  of  making  it  a  judge  in  great  affairs  of 
State.  The  trial  of  the  Knights  Templars  in  1309,  which 
assuredly  would  have  come  before  it  in  later  times  was  held  by 
the  commissioners  of  Pope  Cleme,nt  V.  The  first  time  that  the 
Parliament  uttered  a  formal  remonstrance  was  during  the  reign 
of  Louis  XI,  concerning  the  famous  Pragmatic  Sanction  of 
Bourges.1  During  the  reign  of  his  son,  Charles  VIII,  great 
weight  was  evidently  attached  to  the  attitude  of  Parliament  on 
political  questions,  for  the  Duke  of  Orleans,  afterward  Louis  XII, 
desiring  to  obtain  the  regency,  and  the  government  of  the  young 
king  laid  his  wishes  before  the  assembled  counselors  and  asked 
them  to  declare  in  his  favor.  The  First  President  responded: 
"  Parliament  renders  justice  for  the  people;  finances,  wars,  and 
the  care  of  kings  are  not  within  its  province."8  Not  always  was 
•this  body  governed  by  such  modest  and  discreet  sentiments. 

The  reign  of  Louis  XII  was  not  marked  by  the  slightest 
difference  between  the  monarch  and  his  high  tribunal.  Two 

O 

noteworthy  ordinances  held  in  esteemed  repute,  are  inseparably 
associated  with  his  name.  The  first  enacted  that  no  Baillis  or. 
Prevot  should  be  permitted  to  act  as  judge,  unless  he  was  able 
to  read  and  had  studied  law.  Voltaire  wittily  says:  "  The  high 
officials,  all  of  whom  were  nobles,  preserved  their  dignity  and 


1  Voltaire,  Le  Parlement  de  Paris,  17G9,  p.  ir.5. 
*  Quoted  by  Voltaire  in  chap.  12. 


37 

ignorance,  and  lettered  lieutenants  of  lesser  birth  judged  in  their 
names."1 

The  second  edict  of  1499,  goes  far  to  explain  the  title  grate- 
fully given  him,  the  Father  of  his  Country.  "  Qu'on  suive 
toujours  la  loi  malgre  les  ordres  contraires  a  la  loi,  que  1'impor- 
tunite  pourrait  arracher  du  monarque," 

During  the  reign  of  Francis  I,  the  Parliament  of  Paris 
became  an  important  factor  in  political  events.2  Its  first  variance 
Francis  i,  with  the  king  arose  over  the  Concordat.8  Francis  I, 

and 

Parliament.  who  had  need  of  Leo  X,  abolished  the  Pragmatic 
Sanction,  which  had  so  far  secured  to  the  Church  in  France, 
greater  liberties  than  were  enjoyed  in  any  country  in  Europe. 
He  substituted  for  it  the  Concordat,  by  which  he  gave  the  pope 
certain  portions  of  the  Church  revenue,  and  appropriated  to  him- 
self the  right  to  appoint  to  benefices;  in  other  words,  the  king 
presented  the  pope  with  the  wealth  of  the  Church,  and  the  pope 
handed  over  to  the  king  its  independance.  "Each  gave  to  the 
other,  what  belonged  to  neither."  4The  struggle  over  the 
registration  of  the  Concordat  was  hard  and  long.  The  king 
indignantly  insisted  on  registration,  and  at  a  Bed  of  Justice 
protested  that  no  Parliament  should  make  him  a  Doge  of  Venice. 
After  twelve  years  of  strife  the  infamous  Du  Prat  removed 
ecclesiastical  matters  from  the  cognizance  of  Parliament,  and 
handed  them  over  to  the  king's  council.5  The  other  acts  of  this 
reign  are  not  so  creditable.  It  broke  the  treatv  of  Madrid, 
attainted  the  king's  enemy  and  kinsman,  Charles  of  Bourbon, 

T  Voltaire,  Le  Parl  de  Paris,  chap.  15. 

8  M^rilhou,  Les  Parl.  de  France,  et  leur  carac^re  politique  'depuis 
Philippe  le  Bel,  jusqu'en,  1789.  p  p.  135,  224. 

8  The  text  of  the  Concordat  is  given  in  full  in  the  Recueil  gen  des  ane. 
lois.  xii,  75-97. 

4  Bastard  d'  Estang,  vol.  ii,  p.  9. 

Baird,  The  Rise  of  the  Huguenots.  Vol.  i,  p.  37. 

5  Kitchin,  vol.  ii,  p.  182. 


sr 

and  sanctioned  the  persecutions  of  the  Huguenots.  The  reigns 
of  Henry  II,  Charles  IX,  and  Henry  III,  were  marked  by  a 
constant  succession  of  conflicts  between  the  king  and  the  Parlia- 
ment, with  a  monotonous  sameness  of  result.  1These  two  powers 
agreed  on  only  one  matter,  and  this  was  hatred  of  the  Huguenots. 
The  horrors  of  St.  Bartholomew  drew  forth  from  this  high  judicial 
body  an  approving  edict,  ordering  a  yearly  procession  of  thanks- 
giving to  celebrate  the  great  victory  of  the  faith.  Fortunately 
the  change  in  public  sentiment  spared  France  this  disgrace. 
Henry  IV,  knew  well  how  to  manage  this  company  of  magis- 
trates, and  manage  them  he  did,  firmly  and  sensibly.  When 
Henry  iv,  they  refused  to  register  the  Edict  of  Nantes,  he 

and 

Parliament.  summoned  to  the  Louvre  deputies  from  all  the 
Chambers.8  "What  I  have  done,"  he  said,  "is  for  the  good  of 
peace.  I  speak  to  you  not  in  royal  robe,  or  with  sword  and  cape, 
but  as  a  father  of  his  family  conversing  freely  with  his  childron. 
I  ask  you  to  register  the  edict  I  have  granted  the  Protestants. 
God  has  chosen  to  give  me  this  kingdom,  which  is  mine  by  birth 
and  conquest.  You,  gentlemen  of  Parliament,  would  not  be  in 
your  seats  but  for  me.  If  obedience  was  due  to  my  predecessors, 
it  is  much  more  due  to  me."  *  When  a  father  addresses  his 
children  in  such  terms,  he  is  generally  obeyed.  The  edict  was 
speedily  registered.  With  Richelieu  and  the  minority  of 
Louis  XIII,  came  again  stormy  times.  In  1615  the  Parliament 
without  the  royal  order,  dared  to  summon  princes,  dukes,  peers 
Richelieu  and  high  officials  to  deliberate  upon  the  needs  of  the 

and 

Parliament.  state,  and  the  relief  of  the  people.  "We,"  it  said, 
"  hold  the  place  in  council  of  the  princes  and  barons,  who,  from 


1  Baird,  The  Rise  of  the  Huiruenols.  Vol.  i,  p.  237. 

"  Guizot,  Hist,  de  France,  vol.  v,  p.  112. 

«  M^rilhou,  M.  F.,  Les  Paul,  de  France,  p.  303.  "Cette  manifestation 
d'  une  autorit£  nouvelle  clut  faire  unojjerfonde  impression  sur  les  magis- 
trats." 


39 

time  immemorial  were  near  the  person  of  the  king."1  This 
assumption  Richelieu  constantly  fought  against.  He  would  not 
allow  the  pretension  of  magistrates  to  meddle  in  affairs  of  State. 
There  was  constant  altercation  between  the  king  and  Richelieu  on 
the  one  side,  and  Parliament  on  the  other,  whether  about  points 
of  jurisdiction  or  the  registration  of  edicts  respecting  finances. 
On  one  of  these  occasions8  the  entire  Parliament  was  ordered  to 
the  Louvre,  and  there  with  bare  heads  and  on  bended  knees  was 
compelled  to  supplicate  the  king's  forgiveness.  This  humiliating 
experience  was  not  sufficient  to  restrain  their  assertions  of  right 
and  authority  and  the  struggles  continued  for  ten  years  longer, 
when  in  1641  the  king  issued  an  edict  prohibiting  the  Parliament 
from  any  interference  in  affairs  of  State  and  administration,  the 
preamble  of  which  is  as  formal  a  declaration  of  absolute  power  as 
any  ever  promulgated  by  Louis  XIV.  The  Cardinal  had  at  last 
gained  the  victory.  The  attempts  of  Parliament  at  independence 
during  the  wars  of  the  Fronde,  only  demonstrated  how  futile  was 
its  authority,  and  how  completely  was  it  the  tool  of  the  upper- 
most faction.  Guizot  gays:8  "  The  pretensions  of  the  magistrates 
were  often  foundation  leas;  the  restless  and  meddlesome  character 
of  their  assemblies  did  harm  to  their  remonstrances;  but  for  a 
long  while  they  maintained  in  the  teeth  of  more  and  more 
absolute  kingly  power,  the  country's  rights  in  the  government, 
and  they  had  perceived  the  dangers  of  that  sovereign  monarchy 
which  certainly  sometime  raises  States  to  the  highest  pinnacle  of 
their  glory,  but  only  to  let  them  sink  before  long  to  a  condition 
of  the  most  grievous  abasement."  Louis  XIV  never  forgot  the 
part  that  Parliament  played  during  the  stormy  scenes  of  the 
Louis  xiv,  Fronde,  in  the  early  years  of  his  boyhood.  He  had  that 

and 

Parliament,      instinctive    apprehension    of  the  existence    of  latent 

1  Guizot,  Mist,  de  France,  vol.  ii,  p.  195. 

2  Voltaire,  Hist,  du  Parl.  de  Paris,  vol.  v,  chap.  49,  May  12,  1631. 
8  Guizot,  Hist,  de  France,  vol.  v,  p.  220. 


40 

power  that  led  him  to  give  an  effectual  check   to  the   aspirations 
of  this  assembly  at  the  very  outset  of  his  kindly  career. 

In  the  year  1615  the  Parliament  had  refused  to  register  cer- 
tain financial  edicts.  The  king  (a  boy  not  yet  eighteen  years  of 
age)  presented  himself  before  the  assembly  in  hunting  attire, 
booted  and  spurred  and,  as  is  commonly  added,  with  riding- whip 
in  his  hand.  He  haughtily  commanded  the  Parliament  to  address 
no  more  remonstrances  to  him,  but  to  confine  themselves  to  the 
strict  discharge  of  their  duties.  In  1  j?3  he  issued  an  ordinance 
declaring  that  all  royal  edicts  should  be  registered  within  eight 
days  from  their  date  by  the  Parliament  of  Paris,  and  within  six 
weeks  by  the  other  Parliaments  of  France.1  We  hear  no  more  of 
the  political  role  of  Parliament  during  this  long  reign.  In  the 
period  of  struggle  between  Bousset  and  Louis  XIV  on  one  side, 
and  Rome  and  Innocent  XI  on  the  other,  the  Parliaments  VUM! 
emulously  in  the  support  of  the  king's  policy.  Louis,  satisfied 
with  the  apparent  submission  of  the  supreme  court,  placed  his  last 
will  and  testament  in  their  custody,  where  it  was  deposited  in  a 
small  room  built  expressly  for  its  safe  keeping.  He  seems  to 
have  argued  that  a  body  so  submissive  during  his  life-time  would 
continue  to  be  so  after  his  death.  But  how  quickly  they  took 
their  revenge  for  the  contumely  of  long  silence.  While  his 
body  was  still  lying  in  state  at  Versailles,  the  Parliament  assem- 
bled without  having  been  convoked,8  and  measures  were  at  om;n 
taken  to  break  the  will  of  the  dead  king.  A  few  words  from 
Orleans  to  the  Parliament  sufficed.  The  Duke  received  from  the 
Parliament  the  regency  during  the  king's  minority,  and  the  Par- 
liament received  from  this  imprudent  depository  of  royal  authori- 
ty the  political  power  of  which  it  had  been  deprived  for  sixty 

1  Sir  J.  Stephens,  Lect.  on  Hist,  of  France,  p.  225. 
8  Guizot,  Hist,  tie  France,  vol.  vi,  p.  54. 

Mi'inoires  do  Saint-Simon,  Derniers  mom  nts  de  Louis  XIV.    llachette 
edition. 


41 
The  Missis       years.     The  part  which  the  Parliament  took  in  resist- 

sippi  Com- 
pany, ing  the    chimerical    projects  of    the    Scotchman    Law 

reflect  great  credit  upon  it.  The  opposition  was  probably  due 
more  to  the  repugnance  which  this  body  ever  showed  to  novel 
ideas,  than  to  its  comprehension  of  the  pernicious  results  of 
Law's  system.  It  had  forbidden  the  introduction  of  printing 
under  Louis  XT,  it  had  condemned  the  philosophy  of  Descartes 
in  1624,  it  had  opposed  the  establishment  of  the  French 
Academy  by  Richelieu,  *and  from  similar  motives  it  now  remon- 
strated against  the  financial  innovations  of  Law. 

The  two  great  questions  with  which  the  Parliaments  are 
identified  during  the  18th  century,  are  the  controversies  concern- 
ing the  papal  bull  "  Unigenitus"  and  the  expulsion  of  the  Jesuits. 

The  long  quarrel  between  the  Jansenists  and  the  Jesuits 
'was  fanned  into  fresh  flame  by  the  final  publication  of  the  Pope's 
The  Bull  Uni-  bull,  which  quoted  one  hundred  and  one  propositions 
from  the  work  of  Pere  Quesnel  and  condemned  them 
as  heretical.  The  bull  Unigenitus  appeared  Sept.  8,  1713,  and 
was  registered  by  the  express  wish  of  Louis  XIV,  Feb.  14,  1714. 
The  dying  king,  troubled  and  alarmed  by  discussions  he  deemed 
hurtful  to  true  religion,  desired  to  see  the  kingdom  at  peace 
before  his  death;  but  for  fifty  years  the  bull  Unigenitus  was  a 
fruitful  cause  of  dispute  and  resistance  between  Parliament  and  the 
Church,  while  the  court  party  veered  from  one  side  to  another  as 
selfish  interest  dictated.  During  the  first  years  of  the  regency  the 
Duke  of  Orleans  abandoned  the  Jesuits  to  the  indignation  of 
the  people,  and  the  bull  was  practically  a  dead  letter,  but  in 
1720  the  unprincipled  Dubois  desired  to  become  a  cardinal,  and 
so  offered  his  good  services  to  the  Papal  court.  Voltaire  says, 
with  scornful  disdain,  both  for  the  question  at  issue  and  the 
conduct  of  the  Archbishop:  "The  greater  part  of  these  proposi- 

1  Voltarire,  Hist,  du  Parl.  De  Paris,  chap.  51. 

6 


42 

tions  condemned  by  the  bull  Unigenitus  concerned  metaphysical 
questions  about  free-will,  which  the  Jansenists  no  more  under- 
stood than  the  Jesuits.  The  Archbishop  had  more  contempt  for 
the  bull  than  all  the  Parliaments  of  the  kingdom,  but  he  would 
have  tried  to  force  the  Koran  upon  the  Church  if  the  Koran 
could  have  advanced  his  interests."1  Therefore,  Dec.  4,  1720, 
after  stormy  resistance  on  the  part  of  the  Parliament,  and  a  threat 
from  the  Regent  to  replace  it  by  another  tribunal,  the  bull  was 
again  registered. 

The  controversy  was  by  no  means  extinguished.  The  middle 
classes  throughout  the  country  sided  strongly  with  the  Jansen- 
The  Contest  ^sts>  anc*  eargerly  seized  every  opportunity  to  testify 

Continued.       their  opinion>       Jn    1?30  Louis  Xy  heM  ft  Bed  Qf    j  ug_ 

tice,  and  enforced  a  third  registration  of  the  papal  edict.  The 
next  day  the  Parliament  met  and  drew  up  protests  and  petitions, 
and  for  two  vears  the  judicial  business  was  neglected,  while  the 
counselors  passed  their  time  in  agitating  and  framing  new 
remonstrances.  The  people  became  excited  to  a  degree  of 
extravagant  fanaticism.  Miracles  were  produced  in  abundance 
to  witness  to  the  truths  of  Jansenius.  The  tomb  of  one  of  the 
Jansenist  saints  in  the  cemetery  of  St.  Medard  became  noted  as 
the  seat  of  miraculous  cures,  and  so  disturbing  were  the  scenes 
enacted  there  that  government  was  compelled  to  interfere  and 
shut  out  the  public.  Then  it  was  some  profane  wit  wrote  over 
the  gate: 

"  De  pur  le  Roi,  defense  A  Dieu, 
De  faire  miracle  en  ce  lieu." 

A  final  struggle  was  brought  about  by  the  order  of  the 
Archbishop  of  Paris  in  1749,  in  which  he  commanded  his  priests 
to  require  each  dying  person  to  affirm  belief  in  the  bull  Unigen- 
itus, before  receiving  the  last  sacraments  of  the  Church;  other- 
wise Christian  burial  was  denied. 

1  Voltaire,  Hist,  du  Parl.  de  Paris,  chap.  61. 


43 

Now,  indeed,  all  orders  and  parties  were  embroiled,  and  the 
very  foundations  of  society  were  shaken.  The  Bishops  through- 
out the  country  issued  pastoral  letters  against  the  Parliaments, 
and  the  Parliaments  ordered  the  letters  to  be  publicly  burned. 
These  were  dangerous  times  for  the  Parliaments  and  the  Church 
to  be  indulging  in  open  and  bitter  controversy.  The  attention  of 
the  people  was  called  as  never  before  to  the  rights  of  government 
and  the  relations  of  Church  and  State,  and  the  writings  of  Rous- 
seau1 just  now  appearing,  were  awakening  passionate^  enthusiasm. 

In  1753,  the  members  of  the  Parliament  of  Paris  were  ban- 
ished, and  a  Provisional  Court  was  formed,  but  such  determined 
opposition  was  awakened  that  the  king  recalled  them.  Again, 
the  magistracy  were  exiled,  and  again  recalled,  but  in  the 
sympathy  aroused  by  the  attack  of  an  assassin  upon  the  king, 
the  Parliament  only  returned  by  giving  a  pledge  to  desist  from 
further  attacks  upon  the  bull.  Outward  hostility  ceased,  but 
discontent  and  anger  smouldered  beneath  the  surface. 

They  finally  found  expression  in  the  blow  aimed  against  the 
Order  of  Jesuits.  The  accumulated  hatred  of  the  magistracy  and 
Expulsion  the  popular  party  throughout  the  country,  aided  by 

of  the 

Jesuits.  the  attacks  of  the  sceptical  Encyclopaedists  led  by 
Voltaire  and  Diderot,  brought  about  the  measures,  which  termi- 
nated in  the  ordinance  of  August  2,  1762.  This  decree  abolished 
the  Society  of  Jesus  in  France,  secularized  its  members,  and 
confiscated  its  property. 

1  Rousseau  "that  remarkable  man  who,  without  learning,  with  few 
virtues,  and  no  strength  of  character,  has  nevertheless  stamped  himself 
ineffaceably  on  history  by  the  force  of  a  vivid  imagination,  and  by  the 
help  of  a  genuine  and  burning  love  for  his  fellowuien,  Tor  which  much 
will  always  have  to  be  forgiven  him." 

For  the  effect  of  the  writings  of  Rousseau  on  the  history  of  his  time, 
see  Sir  Henry  Maine,  Ancient  Law,  p.  83. 

De  Tocqueville,  The  Ancient  Regime,  chap.  13. 

Demogeot,  Hist,  de  La  Lit.  Fran.,  p.  506. 

Van  Laun,  H.,  Hist,  of  French  Lit.,  vol.  iii,  pp.  90-111. 

Saintsbury,  G.,    Hist,  of  French  Lit.,  Clarendon  Press,  1882,  p.  484. 


44 

Fruitless  altercation  had  too  familiarized  the  magistracy  to  a 
system  of  obstruction.  More  than  forty  years  *  of  the  reign  of 
Louis  XV.  had  passed  in  a  ceaseless  struggle  between  the 
judicial  power  and  the  crown.  l  The  needs  of  the  Treasury, 
increased  by  war,  constantly  compelled  new  financial  edicts, 
and  refusals  of  registration  were  met  by  frequent  Beds  of  Justice. 
This  anarchy  could  not  endure;  either  the  crown  must  resume  its 
authority,  or  the  Parliament  would  control  the  State. 

Louis  aroused  himself  from  his  lethargy,  and  for  once  acted 
vigorously  and  expeditiously.  Further  compromise  was  no 
Suppression  longer  considered.  By  the  advice  of  '  Chancellor 

of  the 

Parliaments  Maupeou,  the  king  took  the  extreme  step  of  sup- 
pressing altogether  the  ancient  Parliaments  of  the  realm,  both  in 
the  capital  and  the  provinces.  To  take  their  place  six  new 
tribunals  were  instituted  Feb.  23,  1771,  under  the  name  of  con- 
seils-superieurs,  in  the  towns  of  Arras,  Blois,  Chfilons-sur-Marne, 
Clermont,  Lyons,  and  Poitiers,  the  central  court  of  justice  being 
still  maintained  at  Paris!  This  great  organic  change  was  not 
accomplished  without  obstinate  resistance  on  the  part  of  the 
Parliaments  and  expostulations  even  from  the  princes  of  the 
blood;  but  the  great  mass  of  the  people  looked  on  indifferently. 
The  privileges  and  immunities  of  the  Parliaments  had  lost  them 
their  hold  upon  the  third  estate,  and  their  later  contentions  with 
the  crown  were  regarded  as  so  many  selfish  struggles  for  their 
own  aggrandizement. 

To  recommend  the  new  courts  to  public  fa'vor,  Maupeou  an- 
nounced that  justice  would  now  be  administered  free  of  expense, 
and  the  sale  of  offices  was  forbidden. 

When  the  new  king  ascended  the  throne  he  re-established 
the  Parliaments;  but  they  had  learned  no  wisdom  from  their 
exile.  After  fourteen  years,  Louis  XVI  found  himself  in  the 

1  Bastard,  Les  Parl.  de  France,  vol.  ii,  p.  406. 


45 

same  situation  as  the  king,  his  grandsire,  facing  refractory  coun- 
selors. 

They  continued  to  make  angry  remonstrances  about  register- 
ing money  loans,  and  the  king  was  obliged  to  use  the  despotic 
measure  of  a  Bed  of  Justice.  The  Parliament  doubtless  thought 
it  was  conciliating  public  opinion,  which  was  averse  to  new 
taxes,  but  the  needs  of  the  Treasury  were  urgent  and  its  de- 
mands continued.  Finally  the  Parliament  of  Paris  declared 
that  according  to  the  ancient  constitution  of  France,  the  establish- 
ment of  new  imposts  belonged  only  to  the  States- General.  It 
little  anticipated  that  this  cry  meant  its  own  destruction. 

The  States-General,  transformed  into  the  Constituent 
Assembly,  had  scarcely  existed  four  months  when  the  great 
Dissolution  tribunals  ceased  to  be.  1  Nov.  3,  1789,  Alexander 
Parliaments  Lameth  moved  the  abolition  of  the  Parliaments. 
"  They  are  now  in  vacation,"  objected  some  one.  "  So  much  the 
better,"  shouted  Mirabeau,  "Let  them  remain  there;  they  will 
pass  from  sleep  to  death,  and  there  will  be  no  return."  The  de- 
cree, voted  with  cries  of  joy  by  the  majority,  declared  that  the 
Parliaments  should  be  in  perpetual  vacation.  Temporary  courts 
were  at  once  organized,  and  iu  September,  1791,  new  judicial 
organizations  were  framed. 

Thus  the  Parliaments  of  France  passed  out.  of  history. 


1  Bastard,  Les  Parl.  de  France,  vol.  ii,  p.  642. 
Martin,  H.,  Hist,  de  France,  vol.  vi,  chap.  4. 


46 


Parliamentary  Development  in  Franco  and  England. 


A  final  question  now  remains:  Why  did  the  Curia  Regis  of 
France,  the  King's  Council  of  Philippe  Auguste,  eventuate  solely 
in  a  judicial  body,  dependant  for  its  existence  upon  the  king's 
favor,  and  hampered  by  its  lack  of  legal  inundation,  while  the 

Curia  Regis  of  England  of  the1  same  century,  the  King's  Council 
of  Henry  II  advanced  steadily  toward  the  parliamentary  system 
of  the  fifteenth,8  the  seventeenth  and  the  nineteenth  centuries? 

The  answer  rests  partly  upon   racial   characteristics  that  are 

real  elements  in  historical  development.     Freeman    says:8    "The 

institutions  of  a  people  are  the  natural  growth  of  the 

Difference 

m  Race.  circumstances  under  which  it  finds  itself."  Surely,  the 
distinguishing  attribute  of  race  is  a  potential  circumstance.  These 
qualities,  which  each  generation  receives  from  its  predecessors, 
and  transmits  to  the  generation  following,  form  the  most  s  table 
portion  of  our  physical,  mental  and  moral  being  and.beneath  every 
political  variation,  they  must  be  sought  for  and  will  be  found. 

For  over  fifteen  centuries4  Great  Britain  was  peopled  and 
governed  exclusively  by  members  of  the  great  Teutonic  family; 
there  was  an  undisturbed  development  of  German  habits  of 
thought  and  mind.  In  France  throughout  the  same  period,  there 

1  Stubbs,  Const.  Hist,  of  England,  vol.  i,  p.  388. 

*  Stubbs,  Const.  Hist,  of  England,  vol.  ii,  p.  161. 

8  Freeman,  E.  A.,  Comparative  Politics,  p.  30.  This  is  Montesquieu's 
theory,  although  he  underrates  the  strength  of  inherited  qualities.  Cf. 
Chapters  14,  15,  23  and  29,  of  "Esprit  des  Lois." 

*  Greene's  Making  of    England.     Introduction,  note   15.     "The  first 
recorded  appearance  of  the  Saxons  off  the  coast  of  Gaul,  and  in  the  Chan- 
nel was  in  A.  D.  287." 


47 

was  a  vast  preponderance  of  the  Gallic,  or  Roman-Gallic  over 
the  Teutonic  element  of  society.  After  the  German  invasion  of 
the  fifth  century,  the  country  remained  divided  among  half 
savage  tribes  that  took  on  no  distinctive  aspect  of  nationality, 
until  the  strong  hand  of  Chariemague  held  them  in  his  grasp. 
Then  followed  the  slow  and  imperfect  fusion  of  different  races 
that  were  not  welded  into  one  nation  of  Frenchmen,  until  the 
Hundred  Year's  War  was  completed.1  Sir  James  Stephen  says: 
*  England  has  so  long  successfully  maintained  her  free  institu- 
tions, because  she  is  still  as  she  has  always  been,  German;  because 
her  national  franchises  are  the  spontaneous  and  legitimate  fruit  of 
her  national  character;  of  that  character  dutiful,  serious,  persever- 
ing, reverential  and  hopeful,  which  has  been  transmitted  to  us 
from  our  Anglo-Saxon  ancestors." 

England  has  ever  been  governed  by  English  law,  "  a  body 
of  opinions,  maxims,  and  moral  sentiments,  which  it  would  be 
Difference  difficult  to  define,"  and  that  has  largely  grown  out 
f  Law.  of  juc]iciai  decisions,  and  early  German  and  English 
customs.2  Roman  law  has  affected  English  law8  in  so  far  as  it  has 
stimulated  a  judicial  and  legal  spirit,  produced  activity  in  legisla- 
tion and  incited  an  orderly  and  systematic  arrangement  of  laws, 
and  of  methods  of  legal  procedure;  but  the  body  of  English 
legislation  has  remained  essentially  the  same  from  the  ninth  to 
the  nineteenth  century.  Never  has  the  law  been  wrested  by 
any  one  class  to  be  used  as  a  tool  to  manipulate  its  own  interest; 

1  Sir  J.  Stephens,  Lectures  on  the  Hist,  of  France.   Lect.  xxiv,  p.  710. 

8  Prof.  E.  Robertson,  Art.  on  Law,  Enc.  Brit.  ed.  1882,  "Sir  Henry 
Maine  has  associated  its  rise  with  the  activity  of  modern  legislatures, 
which  is,  of  course,  a  characteristic  of  the  societies  in  which  English  laws 
prevail." 

3  Sir  Henry  Maine,  Early  Hist,  of  Institutions,  p.  21.  "The  Roman 
Law  introduced  or  immensely  stimulated  the  habit  of  legislation,  and 
this  is  one  of  the  ways  in  which  it  has  influenced  the  stubborn  body 
of  Germanic  customs  prevailing  in  Great  Baitain." 


48 

the  commons,  the  lords  and  the  king    have  all    had   limits  set  to 
their  authority  by  the  common  law. 

France  has  had  no  one  law  acting  as  the  interpreter  of  a 
national  spirit.  "It  has  been  smitten  with  the  curse  of  an  anom- 
alous and  dissonant  jurisprudence  beyond  every  other  country 
in  Europe."  *  Before  1789  it  was  divided  into  two  great  di 
visions;  the  provinces  in  which  the  Droit  E crit^  or  Written  Law 
prevailed,  and  those  in  which  the  D>roit  Coutunwer  or  Customary 
Law,  pravailed.  The  former,  as  the  basis  of  their  jurisprudence, 
accepted  the  written  Roman  law;  the  latter  only  admitted  it  in 
so  far  as  it  was  conformable  to  their  local  usages,  and  then  it 
mainly  supplied  judicial  expressions  and  forms  of  legal  reason- 
ing. There  was  still  further  division.  Where  the  Customary 
Law  was  in  force,  each  commune,  city,8  and  province3  had  its 
own  customs,  and  where  the  Written  Law  was  observed,  the  feu- 
dal usages  that  formed  a  part  of  it  were  of  a  miscellaneous  and 
arbitrary  nature.4  The  different  customs  and  usages  tended  to 
a  disintegration  of  national  thought;  each  man  had  more  interest 
in  his  village  or  province  than  in  the  nation.  The  arbitrary 
maxims  of  Rome  made  the  law  itself  subservient  to  the  absolute 
power  of  the  crown.  It  needed  the  French  Revolution  to  wipe 
out  this  anonalous  mass  of  jurisprudence,  and  to  furnish  one  law 


1  Sir  Henry  Maine,  Ancient  Law,  p.  80. 

8  Ain.  Law  Rev.  vol.  xii,  p.  262,  Parliaments  in  France.  "A  man's 
rights,  his  responsibilities,  and  his  mode  of  enforcing  them,  might  vary 
as  he  passed  from  one  village  to  another.  He  could  breakfast  at  Nismes 
without  fear  of  the  terrors  of  the  law,  only  to  find  himself  when  he  reached 
Aries  subject  to  its  direct  penalties. 

8  Kitchin's  Hist,  of  France,  vol.  ii,  p.  457.  "In  the  reign  of  Henry 
IV,  Dauphiny  struggled  hard  to  get  the  tax  shifted  from  personal  to  real 
property,  a  boon  so  needful  for  a  poor  and  hilly  country.  Languedoc,  her 
wealthy  neighbor,  was  actually  under  the  other  system,  and  had  her  tax- 
ation based  on  real  property."' 

4  De  Tocqueville,  The  Old  Regime  and  the  Revolution;  Appendix, 
note  on  Feudal  Rights. 

Hallam,  H.,  The  Middle  Ages,  vol.  i,  chap.  2,  part  ii. 


49 

for  every  Frenchman  and  every  locality.  Certainly,  the  law  ad- 
ministered in  the  courts  of  France  before  1789  was  not  fitted  to 
make  the  great  chartered  corporations  of  justice,  so  much  the 
guardians  of  the  liberties  of  a  nation,  as  the  protectors  of  the 
privileges  of  a  province,  and  of  the  prerogatives  of  a  king. 

Another  consequence  follows  from  the  difference  in  law. 
Guizot  lays  down  as  a  primary  truth,  that1  "  the  true  principle 
Division  of  °^  rePresen^ve  government  is  the  radical  illegitimacy 
of  all  absolute  powor,  whatever  may  be  its  name  or 
place;  that  absolute  power  as  a  right  inheres  in  none  of  the 
powers,  which  concur  to  form  the  government."  Therefore,  the 
first  great  external  characteristic  of  representative  government  is 
division  of  powers 

In  England  for  more  than  a  thousand  years  the  law  has 
always  interposed  to  prevent  the  encroachment  of  one  order  of 
the  State  upon  another,  and  to  vindicate  the  rights  of  all. 
Although  the  king  has  at  times  asserted,  he  has  never  established 
the  claim  to  inscribe  among  the  laws  of  the  land,  edicts  issued 
upon  the  sole  authority  of  his  prerogative,  and  no  king,  since  the 
time  of  earliest  king-making,  has  sat  upon  the  throne,  without 
the  recognition  of  his  title,  either  by  his  Council  of  Barons,  or 
later,  his  Parliament.  The  sovereignty  of  the  king  has  always 
been  limited,2  and  the  power  of  the  government  has  been  shared 
among  the  different  orders  of  the  State,  in  other  words,  the  law 
has  defined  with  a  degree  of  clearness  the  functions  and  the 
limits  of  the  legislative,  judicial  and  executive  division  of 
government. 

In  France  we  find  no  such  division  resulting  from  the  feudal 
and  Roman  law.  The  feudal  lord  combined  in  himself  the 
legislative,  judicial  and  executive  government  of  his  domain. 
Public  opinion  exercised  slight  control  over  him,  and  his  vassal 

1  Guizot,  Essays  upon  Representative  Gov.  in  England.    Lect.  1. 
8  llallam,  H.,  Constitutional  Hist,  of  England,  vol.  i,  chap.  1. 


50 

had  no  right,  which  it  was  dangerous  for  him  to  disrespect. 
These  two  sentences  sum  up  the  three  contraries  to  the  charac- 
teristics of  representative  government,  as  Guizot  defines  them.1 
The  Roman  law  held  that  every  ordinance  pronounced  in  the 
King's  Court  was  binding  throughout  his  kingdom,  thus  making 
the  king  a  legislator;  and  it  furnished  the  doctrine  familiar  to 
every  student  of  modern  history,  that,  "  the  sovereign  is  the 
fountain  of  all  justice,"  thus  making  him  a  judge. 

These  were  the  features  of  the  law  with  which  the  Parlia- 
ment of  Paris  was  profoundly  familiar,  to  whose  study  and 
practice  the  counselors  had  devoted  their  lives,  and  by  which 
their  habits  of  thought  were  determined.  No  evolution  from 
such  an  institution  could  produce  the  deliberative  body  of  a 
representative  government. 

There  were  certain  minor  features,  peculiar  to  the  French 
judicial  system,  that  furnish  a  further  answer  to  the  question  of 
Certain  minor  Parliam^ntary  development.  The  sale  and  hereditary 
tenure  of  judicial  offices;  the  privileges  of  the 
magistrates,  and  their  exemptions  from  taxation;  the  multiplica- 
tion and  dispersion  of  the  Parliaments,  which  prevented  them 
from  acting  with  the  unity  of  a  single  body;  these  facts  were  real 
agencies  that  removed  the  Parliaments  from  the  sympathies  of 
the  people,  and  did  away  with  the  idea  of  representative 
connection  between  them. 

In  truth,  the  Old  Regime  and  the  Parliaments  were  in- 
dissolubly  bound  together;  the  weakness  and  the  strength  of 
both  inhered  in  the  common  foundation  of  kingly  absolutism. 
The  opening  of  the  States-General,  May  5,  17b9,  that  was  the 
portent  of  the  destruction  of  old-time  royalty,  was  likewise  the 
presage  of  the  dissolution  of  the  Parliaments  of  France. 

1  Guizot,  Essays  upon  Representative  Government  in  England.  Lect, 
1.  "  The  three  external  characteristics  of  the  principle  of  representative 
government,  are:  1.  division  of  powers;  2.  election  of  officers;  :}.  publicity 
of  discussion. 


THIS  BOOK  IS  DUE  ON  THE  LAST  DATE 
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AN  INITIAL  FINE  OF  25  CENTS 

WILL  BE  ASSESSED  FOR  FAILURE  TO  RETURN 
THIS  BOOK  ON  THE  DATE  DUE.  THE  PENALTY 
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NOV  6  1940 

}?  °  /L 

'  1  ~~~  / 

FF'^  gn>  ro4L 

2  T-  c: 

LD  21-100m-7,'40(  6936s) 

Rot 


